[2014] KEELRC 1105 (KLR)
The court found that the applicant was under disability due to serious injuries suffered at work on 29th November 2005, as evidenced by medical records and reports. Under Section 22 of the Limitation of Actions Act, the limitation period does not run while a person is under disability. The disability ceased in...
Source-derived case information.
- Citation
- [2014] KEELRC 1105 (KLR)
- Parties
- Applicant: Maritinah Mwekonyo Musyoki; Respondent: Alpha Fine Foods Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 5 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Claim Out of Time
- Outcome
- Application for leave to file claim out of time granted.
- Legal Topics
- Limitation Periods, Disability Exception, Unfair Termination, Workplace Injury
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maritinah Mwekonyo Musyoki
Applicant
Alpha Fine Foods Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Claim Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file her employment claim out of time due to disability.
- 2 Whether the attached Memorandum of Claim should be deemed duly filed upon payment of court fees.
Ratio Decidendi
The court found that the applicant was under disability due to serious injuries suffered at work on 29th November 2005, as evidenced by medical records and reports. Under Section 22 of the Limitation of Actions Act, the limitation period does not run while a person is under disability. The disability ceased in August 2012, and the cause of action therefore commenced at that time. The application for leave to file the claim out of time was granted, and the Memorandum of Claim attached to the originating summons was deemed properly filed upon payment of requisite court fees.
Court Disposition
Application for leave to file claim out of time granted.
Orders
- The applicant is granted leave to file her claim out of time.
- The Memorandum of Claim filed with the originating summons is deemed properly on record upon payment of the requisite court fees by the applicant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
MISC. APPLICATION NO. 5 OF 2013
MARITINAH MWEKONYO MUSYOKI…………CLAIMANT
VERSUS
ALPHA FINE FOODS LIMITED……………RESPONDENT
RULING
By an originating summons dated 6th February 2013 and filed in Court on 12th February 2013 the applicant seeks leave to file her claim out of time and the Memorandum of Claim attached to the originating summons be deemed to be duly filed upon payment of requisite court fees. The application is supported by the grounds on the face of the application and her affidavit sworn on 6th February 2014.
The application was heard exparte on 12th June 214 following the failure of the Respondent to Respond to the application and to attend court after service of hearing notice eight times as evidenced by the affidavits of service in the court file.
The applicant who is unrepresented submitted that her employment with the Respondent was unfairly and wrongfully terminated on 29th May 2005, that she was unwell following serious injury while at work in the course of duty as a result of which the cause of action lapsed in May 2011. That she finished treatment in August 2012 and filed the present application on 12th February 2013 following the refusal of the Respondent to pay her terminal dues.
The Claimant attached medical treatment records and medical reports that confirm her injury while at work on 29th November 2005.
Under Section 22 of the Limitation of Actions Act limitation period in respect of a person under disability does not start running until the disability ceases. I am satisfied from the medical record and reports attached to the applicant’s affidavit and her oral submissions that she was under disability following the serious injuries she suffered while at work on 29th November 2005. The disability ceased in August 2012. The cause of action therefore commenced in August 2012.
For these reasons I grant the applicant leave to file her claim out of time. The Memorandum of claim filed with the originating summons will be deemed to be properly on record upon payment of the requisite court fees by the applicant.
Orders accordingly.
Dated and delivered at Nairobi this 16th day of June 2014 HON. LADY JUSTICE MAUREEN ONYANGO
JUDGE
In the presence of:
Maritinah Mwekonyo/Applicant present in person
No appearance for Respondent