[2015] KEELRC 1410 (KLR)
The court held that section 90 of the Employment Act expressly bars the institution of civil actions or proceedings based on the Act or a contract of service unless commenced within three years after the act, neglect, or default complained of. Unlike actions based on tort, for which section 27 of the Limitation of...
Source-derived case information.
- Citation
- [2015] KEELRC 1410 (KLR)
- Parties
- Applicant: Margaret Wangui Kimani; Respondent: Telkom Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 109 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed with costs
- Judges
- DI Wasike
- Legal Topics
- Limitation Periods, Extension of Time, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Wangui Kimani
Applicant
Telkom Kenya Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the court can grant leave to file a suit out of time for a claim arising from an employment contract.
- 2 Whether section 90 of the Employment Act allows for extension of time to bring actions based on contracts.
Ratio Decidendi
The court held that section 90 of the Employment Act expressly bars the institution of civil actions or proceedings based on the Act or a contract of service unless commenced within three years after the act, neglect, or default complained of. Unlike actions based on tort, for which section 27 of the Limitation of Actions Act allows for extension of time, there is no statutory provision permitting extension of time for actions based on contracts. The court found that the applicant's claim, having arisen in 2006 and the application for leave being made in 2014, was time-barred. The promises allegedly made by the respondent did not create an exception to the statutory limitation....
Court Disposition
application dismissed with costs
Orders
- The application for leave to file suit out of time is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
MISC. APP NO. 109 OF 2014
MARGARET WANGUI KIMANI………..…………………………CLAIMANT
VERSUS
TELKOM KENYA LIMITED………………........………………..RESPONDENT
RULING
1. By an ex-parte chamber summons dated 14th August 2014 the applicant seeks leave of Court to file a suit out of time.
2. The application was brought on the ground that the cause of action arose on or about 13th February, 2006 hence exceeding 3 years statutory period required by law. The application is further grounded on the fact that the respondent had been making promises of paying the claimant thus the option of instituting a suit was not an option until the respondent disregarded the claimant’s concerns.
3. Section 90 of the Employment Act provides as follows:-
“…Notwithstanding the provisions of section 4(1) of the Limitation of Action Act, 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 a continuing injury or damage, within twelve months next after the cessation thereof.”
4. Section 4 (1) of the Limitation of Action Act lists actions which may be brought prior to expiry of six years from the date on which the cause of action accrued. Section 4(2) of the said Act however provides that actions based on tort may not be brought after expiry of three years from the date on which the cause of action accrued.
5. However, under section 27 of the Act actions based on tort may be brought after the expiry of three years provided the Court has granted leave to do so prior to or after the commencement of the action.
6. Section 90 of the employment Act referred to above, as well as section 4(1) of the Limitation of Actions Act do not provide for extension of time to bring actions based on contracts. This therefore means no extention of time is permissible for these actions once limitation has elapsed. To this extent this application cannot be granted hence stands dismissed with costs.
7. It is so ordered.
Dated at Nairobi this 27th day of January 2015
Abuodha J. N.
Judge
Delivered this 27th day of January 2015
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge