[2014] KEELRC 903 (KLR)
The court found that the applicant was under a mental disability from June 2005 until 15th January 2014, as confirmed by a consultant psychiatrist. Consequently, time for filing the claim did not begin to run until the applicant regained capacity. The court distinguished the Divecon case, noting that it applied...
Source-derived case information.
- Citation
- [2014] KEELRC 903 (KLR)
- Parties
- Applicant: Kithure M'Mwenda Nyaga; Respondent: Teachers Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 16 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Legal Topics
- Limitation Periods, Disability and Limitation, Leave to File Out of Time, Employment Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kithure M'Mwenda Nyaga
Applicant
Teachers Service Commission
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the court has jurisdiction to extend time for filing a claim arising from contract in employment matters.
- 2 Whether the applicant's mental illness constituted a disability that suspended the running of time under the Limitation of Actions Act.
- 3 Whether the applicant was guilty of unreasonable delay in bringing the application.
Ratio Decidendi
The court found that the applicant was under a mental disability from June 2005 until 15th January 2014, as confirmed by a consultant psychiatrist. Consequently, time for filing the claim did not begin to run until the applicant regained capacity. The court distinguished the Divecon case, noting that it applied where the limitation period had actually run out against a claimant who was not under disability. Since the applicant was incapacitated and only regained capacity in January 2014, the application to file the claim out of time was allowed. The court held that the applicant was not guilty of unreasonable delay, and the statutory provisions on limitation did not bar his claim due to...
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file his claim against the respondent out of time.
- The costs of this application will be in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
MISCELLANEOUS APPLICATION NO 16 OF 2014
KITHURE M'MWENDA NYAGA..................APPLICANT
VS
TEACHERS SERVICE COMMISSION......RESPONDENT
RULING
1. The Applicant's application brought by way of Notice of Motion dated 24th February 2014 seeks leave of this Court to file a suit against the Respondent out of time. The application is based on the ground that soon after his dismissal from the Respondent's employment, the Applicant began to suffer from a mental ailment for which he underwent treatment. The application is supported by the Applicant’s affidavit sworn on 24th February 2014
2. By letter dated 15th January 2014, the Applicant's doctor has confirmed that his mental status has now stabilized. The Applicant worked for the Respondent from 24th March 1990 until 6th May 2004 when he was dismissed on allegations of insubordination. Soon after his dismissal, the Applicant was hit by a mental illness and was therefore unable to pursue a claim against the Respondent.
3. The Respondent filed Grounds of Opposition on 7th March 2014 stating that this Court lacks jurisdiction to extend time for filing of a claim. The Respondent further states that the Applicant has not adduced sufficient grounds to support his application and that he is guilty of unreasonable delay.
4. The Applicant's application is brought under Sections 4(1) and 22 of the Limitation of Actions Act, Section 12 of the Industrial Court Act, 2011 and Rule 16 of the Industrial Court (Procedure) Rules, 2010.
5. Section 4(1) (a) of the Limitation of Actions Act provides that actions founded on contract may not be brought after the end of six years from the date on which the cause of action accrued.
6. Part III of the Limitation of Actions Act provides specific instances in which time may be extended under the Act. Counsel for the Respondent referred the Court to the case of Divecon Limited Vs Shirinkhanu Sadrudin Samani (Civil Appeal No. 142 of 1997) in which the Court of Appeal held that Part III does not confer jurisdiction on courts to entertain applications for extension of time with respect to actions arising from contract.
7. In my view, Divecon Vs Samani addressed itself to situations where the limitation period has actually run out as against a claimant and is therefore distinguishable from the case before this Court. Chitty on Contracts (Volume I) at page 28-065 states that time begins to run against a claimant who is in a position to commence proceedings but neglects to do so.
8. According to the document dated 15th January 2014 issued by Dr. Kisivuli A.J, Consultant Psychiatrist, the Applicant suffered a disability from June 2005 until 15th January 2014 and was therefore not in a position to bring his claim during this period. The Court therefore finds that time did not begin to run against the Applicant until 15thJanuary 2014 when the doctor confirmed that he had regained normal capacity.
9. The Applicant's application to file his claim out of time is therefore allowed. The costs of this application will be in the cause.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 31ST DAY OF MARCH 2014
LINNET NDOLO
JUDGE
In the Presence of:
............................................................................................Applicant
..........................................................................................Respondent