[2024] KEELRC 2117 (KLR)
The court found that the claimant's suit was filed more than three years after the alleged date of termination of employment, contrary to section 90 of the Employment Act, 2007. The statutory limitation period for instituting employment-related claims is three years, and courts have consistently held that this...
Source-derived case information.
- Citation
- [2024] KEELRC 2117 (KLR)
- Parties
- Applicant: Japhet O Maina; Respondent: Mocam Security Services Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Employment and Labour Relations Cause 644 of 2020
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- suit struck out as statute barred
- Judges
- MN Nduma
- Legal Topics
- Limitation Periods, Unlawful Termination, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet O Maina
Applicant
Mocam Security Services Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is statute barred under section 90 of the Employment Act, 2007.
- 2 Whether the court has jurisdiction to entertain a claim filed after the statutory limitation period for employment disputes.
Ratio Decidendi
The court found that the claimant's suit was filed more than three years after the alleged date of termination of employment, contrary to section 90 of the Employment Act, 2007. The statutory limitation period for instituting employment-related claims is three years, and courts have consistently held that this period cannot be extended. As the claim was filed outside the prescribed period, the court lacks jurisdiction to entertain the matter. The preliminary objection was therefore upheld, and the suit was struck out for being statute barred.
Court Disposition
suit struck out as statute barred
Orders
- The preliminary objection is upheld.
- The suit is struck out for being statute barred under section 90 of the Employment Act, 2007.
Full Case Text
Judgment text and source record
24 paragraphs
Maina v Mocam Security Services Limited (Employment and Labour Relations Cause 644 of 2020) [2024] KEELRC 2117 (KLR) (25 July 2024) (Ruling)
Neutral citation: [2024] KEELRC 2117 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Employment and Labour Relations Cause 644 of 2020
MN Nduma, J
July 25, 2024
Between
Japhet O Maina
Claimant
and
Mocam Security Services Limited
Respondent
Ruling
1. The respondent filed a preliminary objection to wit that the claim is statute barred by dint of the provisions of section 90 of the Employment Act 2007.
2. The suit was filed vide a memorandum of claim on 10th October 2020.
3. The memorandum of claim discloses the cause of action arose on or about the 27th August 2017 when the respondent terminated the employment of the claimant. That the termination was verbal in that the claimant was told to go home and would be recalled but that did not happen.
4. The claimant seeks maximum compensation for unlawful termination of employment. Further the claimant seeks payment of two months’ salary in lieu of notice, payment in lieu of leave days not paid, refund of bus fare and underpayment for the month of October 2015 to August 2017. The total claim is for a sum of Kshs. 302,244/=.
5. In terms of the letter of demand by advocates of the claimant to the respondent dated 24/3/2020, the date of termination is stated to be August 2017, that notwithstanding, the claimant and/or his advocates did not file suit until the 10th October 2020 which is about two months after expiry of three (3) years from the date of alleged termination.
6. The Court of Appeal and this Court in various cases including Beatrice Kahai Adagala v Postal Corporation of Kenya (2015) eKLR and Devecon Limited v Samani 1995-1998 as well as in Josephat Ndirangu v Henkel Chemicals Limited 2013 eKLR strictly applied the limitation of three (3) years on all suits founded on contract of employment by dint of section 90 of the Employment Act, 2007, which reads: -“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.”
7. The courts have also found that the period within which a suit based on employment contract is filed may not be extended in terms of the Limitation of Actions Act Cap 22 Laws of Kenya.
8. The hands of the court are tied in this respect since this is a jurisdictional issue that deprives the court of the authority to hear and determine a suit founded on employment contract after expiry of three years regardless whether the period has lapsed by a few days, months or less than a year.
9. Accordingly, the preliminary objection has merit and is upheld by the court. The suit is struck out with no order as to costs for violating the statute bar aforesaid.
DATED AT NAIROBI THIS 25TH DAY OF JULY, 2024. MATHEWS NDERI NDUMAJUDGEAppearance:Mr. Mbeche for claimantMr. Kiprono for respondentMr. Kemboi Court Assistant