[2020] KEELRC 90 (KLR)
The court found that the claim was a straightforward employment dispute and not a constitutional matter. Applying binding precedent from the Court of Appeal in Kenya Ports Authority v Cyrus Maina Njoroge, the court held that Section 66 of the Kenya Ports Authority Act governs limitation of actions against the...
Source-derived case information.
- Citation
- [2020] KEELRC 90 (KLR)
- Parties
- Claimant: Mohamed Iddi Juma; Respondent: Kenya Ports Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 507 of 2018
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim_struck_out_for_lack_of_jurisdiction
- Judges
- L Ndolo
- Legal Topics
- Limitation of Actions, Jurisdiction of Court, Statutory Notice Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Iddi Juma
Claimant
Kenya Ports Authority
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is statute barred under Section 66 of the Kenya Ports Authority Act.
- 2 Whether the Employment and Labour Relations Court has jurisdiction to entertain the claim filed outside the statutory limitation period.
- 3 Whether the claim is governed by the Employment Act or the Kenya Ports Authority Act regarding limitation of actions.
Ratio Decidendi
The court found that the claim was a straightforward employment dispute and not a constitutional matter. Applying binding precedent from the Court of Appeal in Kenya Ports Authority v Cyrus Maina Njoroge, the court held that Section 66 of the Kenya Ports Authority Act governs limitation of actions against the Authority, requiring claims to be filed within twelve months of the cause of action and after giving one month written notice. Since the Claimant's claim was filed outside this period, the court lacked jurisdiction to entertain it. The claim was therefore struck out for being statute barred.
Court Disposition
claim_struck_out_for_lack_of_jurisdiction
Orders
- The claim is struck out for being filed out of time and for want of jurisdiction.
- Each party will bear their own costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE 507 OF 2018
MOHAMED IDDI JUMA....................CLAIMANT
VS
KENYA PORTS AUTHORITY......RESPONDENT
RULING
1. What is before me is the Respondent’s Preliminary Objection raised by notice dated 22nd October 2020 and filed in court on 23rd October 2020.
2. The Objection is based on the following grounds:
a. That the Court is divested of jurisdiction since the Claimant’s claim has been instituted contrary to Section 66 of the Kenya Ports Authority Act;
b. That the claim contravenes Section 90 of the Employment Act.
3. The Objection was urged by way of written submissions.
4. The Respondent’s Objection is premised on Section 66 of the Kenya Ports Authority Act which provides:
66. Where any action or other legal proceeding is commenced against the Authority for any act done in pursuance or execution or intended execution of this Act or any public duty or authority, or in respect of any alleged neglect or default in the execution of this Act or any such duty or authority, the following shall have effect: -
a. The action or legal proceeding shall not be commenced against the Authority until at least one month after written notice containing the particulars of the claim, and of intention to commence the action or legal proceeding, has been served upon the Managing Director by the plaintiff or his agent.
b. The action or legal proceeding shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of continuing injury or damage, within six months next after cessation thereof.
5. In the submissions filed on behalf of the Respondent on 23rd October 2020, reference was made to the decision in Kenya Ports Authority v Cyrus Maina Njoroge [2018] eKLR where the Court of Appeal held that an employment claim brought against the Kenya Ports Authority after twelve months post accrual of the cause action is statute barred.
6. In his written submissions filed on 24th November 2020, the Claimant urged that limitation of employment actions ought to be governed by the Limitation of Actions Act and the Employment Act and not by an incorporation statute such as the Kenya Ports Authority Act.
7. The Claimant further submitted that his claim was founded on a continuing breach of his fundamental rights and should therefore not be subjected to limitation of time.
8. I have looked at the Claimant’s Memorandum of Claim and find that although the Claimant alleges discrimination in the body of his claim, all his prayers relate to loss of salary and allowances.
9. To my mind, this is a straight forward employment dispute which does not raise a constitutional moment.
10. That said and in light of Kenya Ports Authority v Cyrus Maina Njoroge(supra) which binds this Court, I find and hold that the Claimant’s claim was filed out of time and the Court lacks jurisdiction to entertain it.
11. The claim is therefore struck out.
12. Each party will bear their own costs.
13. Orders accordingly.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 17TH DAY DECEMBER 2020
LINNET NDOLO
JUDGE
ORDER
In view of restrictions in physical court operations occasioned by the COVID-19 Pandemic, this ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of court fees.
LINNET NDOLO
JUDGE
Appearance:
Mr. Tindika for the Claimant
Miss Kamau for the Respondent