[2020] KEELRC 1731 (KLR)
The court found that the Claimant was dismissed on 29th August 2012 and filed the claim on 15th May 2018, nearly six years later. Section 90 of the Employment Act provides a strict three-year limitation period for instituting employment-related claims. The Court of Appeal has affirmed that the limitation period...
Source-derived case information.
- Citation
- [2020] KEELRC 1731 (KLR)
- Parties
- Claimant: Melkor Pola Kalama; Respondent: Brookside Dairy Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 323 of 2018
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim struck out as statute barred
- Judges
- L Ndolo
- 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
Melkor Pola Kalama
Claimant
Brookside Dairy 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.
- 2 Whether the court has jurisdiction to entertain a claim filed outside the statutory limitation period.
Ratio Decidendi
The court found that the Claimant was dismissed on 29th August 2012 and filed the claim on 15th May 2018, nearly six years later. Section 90 of the Employment Act provides a strict three-year limitation period for instituting employment-related claims. The Court of Appeal has affirmed that the limitation period begins to run from the date the termination letter is issued. Since the claim was filed well outside the statutory period, the court held that it lacked jurisdiction to entertain the matter and struck out the claim as statute barred.
Court Disposition
claim struck out as statute barred
Orders
- The claim is struck out for being filed out of time.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO 323 OF 2018
MELKOR POLA KALAMA………………………………….CLAIMANT
VERSUS
BROOKSIDE DAIRY LIMITED…………………………RESPONDENT
RULING
1. This ruling proceeds from a Preliminary Objection raised by the Respondent by notice dated 16th July 2018 to the effect that the Claimant’s claim is statute barred by dint of Section 90 of the Employment Act.
2. In spite of due service, the Claimant opted not to respond to the objection.
3. The Respondent states that the Claimant having been dismissed on 29th August 2012, his claim filed on 15th May 2018 is way out of time.
4. This objection is premised on Section 90 of the Employment Act which provides as follows:
90. Notwithstanding the provisions of section 4(1) of the Limitation of Actions 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 after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.
5. At paragraph 8 of his Statement of Claim dated 15th May 2018 and filed in court on the same date, the Claimant pleads the date of his dismissal as 29th August 2012.
6. In its decision in Attorney General & another v Andrew Maina Githinji and another [2016] eKLR the Court of Appeal affirmed that in a claim arising from termination of employment, the cause of action crystallises when the termination letter is issued. This is when time begins to run.
7. The Claimant’s claim ought to have been filed before the lapse of three years which would have been 28th August 2015. The current claim is therefore way out of time and the Court has no jurisdiction to entertain it.
8. The claim is therefore struck out with no order for costs.
9. It is so ordered.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 23RD DAY JANUARY 2020
LINNET NDOLO
JUDGE
Appearance:
No appearance for the Claimant
Mr. Bwika for the Respondent