[2014] KEELRC 387 (KLR)
The court held that it lacks jurisdiction to extend or vary the statutory limitation period for employment claims as set out in Section 90 of the Employment Act 2007. The Applicant's reliance on provisions of the Limitation of Actions Act and the Civil Procedure Act was misplaced, as these do not confer such power...
Source-derived case information.
- Citation
- [2014] KEELRC 387 (KLR)
- Parties
- Applicant: Moses Kimani Njaramba; Respondent: Chuna Housing Co-operative Society
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 18 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Out of Time
- Outcome
- application dismissed
- Legal Topics
- Limitation Periods, Unlawful Termination, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Kimani Njaramba
Applicant
Chuna Housing Co-operative Society
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Out of Time
Legal Issues
- 1 Whether the Industrial Court has jurisdiction to extend or vary the limitation period prescribed under Section 90 of the Employment Act 2007.
- 2 Whether the Applicant can be granted leave to file an employment claim outside the statutory limitation period.
Ratio Decidendi
The court held that it lacks jurisdiction to extend or vary the statutory limitation period for employment claims as set out in Section 90 of the Employment Act 2007. The Applicant's reliance on provisions of the Limitation of Actions Act and the Civil Procedure Act was misplaced, as these do not confer such power on the Industrial Court. Since the claim was filed outside the prescribed three-year period and there is no legal basis for extension, the application must be dismissed.
Court Disposition
application dismissed
Orders
- The application for leave to file the claim out of time is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 18 OF 2014
BETWEEN
MOSES KIMANI NJARAMBA……………………………CLAIMANT
VERSUS
CHUNA HOUSING CO-OPERATIVE SOCIETY………RESPONDENT
RULING
The Applicant filed an ex parte Originating Summons on 27th February 2014, seeking leave to file Claim against the Respondent, outside the prescribed time.
He initially filed a Claim for unlawful termination in the Co-operative Tribunal at Nairobi, on 5th August 2011.
He withdrew the Claim from the Co-operative Tribunal on the prompting of the Tribunal, on 27th February 2014.
3 years limit prescribed under Section 90 of the Employment Act 2007 on filing of employment claims, had already lapsed at the time of withdrawal from the Tribunal, the Applicant having lost his employment on 12th February 2010.
The Application was heard on 26th March 2014.
The Court Finds and Orders:-
1. There is no Law which allows the Industrial Court to vary the time limits given under Section 90 of the Employment Act 2007. Neither Section 27 nor 28 of the Limitation of Actions Act Cap 12 the Laws of Kenya, nor Section 3A of the Civil Procedure Act, invoked by the Applicant, allow the Industrial Court to alter the mandatory time Limit prescribed under Section 90 of the Employment Act 2007.
2. The Applicant was represented by Mandala & Co. Advocates at the Tribunal, a Law Firm which has made several successful Claims on employment termination at the Industrial Court. It is difficult to see why this particular Claim was first filed in the Tribunal in the year 2011.
3. Unfortunately, this Court finds it has no power to assist the Applicant in overcoming this hurdle which is self-imposed. The Application is dismissed, with no order on the costs.
Dated and delivered at Nairobi this 8th day of July 2014
James Rika
Judge