https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1715

Kirotich v Kenya Commercial Bank Ltd (Employment and Labour Relations Miscellaneous E473 of 2025) [2026] KEELRC 1715 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1715 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Miscellaneous E473 of 2025 HS Wasilwa, J June 23, 2026 Between Moses Kissang Kirotich Applicant and Kenya Commercial Bank Limited Respondent Ruling 1.The applicant filed a notice of motion application dated 3rd November 2025 seeking orders:1.Spent.2.That this honourable court be pleased to grant the applicant leave to file a statement of claim out of time against the respondent, Kenya Commercial Bank Limited.3.That the annexed draft statement of claim be deemed duly filed upon payment of the requisite court fees.4.That the costs of this application be provided for. Applicant’s Case 2.The applicant avers that he was employed by the respondent from 1991 until 27th April 2016, when he was forced to resign under duress following false accusations of stealing by servant. 3.He avers that he was subsequently charged in Milimani Criminal Case No. 649 of 2016, where he remained an accused person for over nine years until 14th August 2025, when the court dismissed the charges under section 210 of the Criminal Procedure Code and acquitted him fully. 4.The applicant avers that throughout the pendency of the criminal case, he was advised both informally and legally not to pursue any civil or employment proceedings touching on the same facts so as to avoid prejudicing his defence, and that this reasonably prevented him from filing an employment claim within the statutory limitation period. 5.He further contends that the respondent's conduct, including the unlawful alteration of his staff loan terms, imposition of commercial interest, and ongoing threats of auction against his matrimonial home between 2016 and 2025 constitutes a continuing violation of his rights and contractual entitlements, giving rise to a fresh and continuing cause of action. 6.The applicant asserts that any delay in filing was neither deliberate nor inordinate but was occasioned by criminal proceedings beyond his control, and that he has acted in good faith and with due diligence throughout. 7.It is the applicant's case that the intended claim raises serious constitutional and statutory issues under articles 41 and 47 of the Constitution of Kenya and sections 41, 43, and 45 of the Employment Act, and that it is in the interests of justice that the matter be heard on its merits. 8.He contends that no prejudice will be suffered by the respondent that cannot be compensated by an award of costs, whereas he stands to suffer grave injustice if shut out from the seat of justice after long service and full exoneration. Respondent’s Case 9.In opposition to the application, the respondent filed ground of opposition dated 11th February 2026 on the grounds:1.That this honourable court lacks jurisdiction to enlarge the three-year statutory limitation period prescribed under section 89 of the Employment Act, Cap 226 Laws of Kenya (the “Act”).2.That the applicant's cause of action accrued on the date of termination of the employment and not on the date of the applicant’s acquittal in the criminal case as erroneously contended.3.That as a matter of law, in employment and labor relations matters, time starts running from the date the cause of action accrued and does not stop running for any reason, including on account of the pendency of criminal investigations or criminal proceedings arising from the same or related facts.4.That the existence or pendency of criminal proceedings does not bar, impede or preclude the institution of civil proceedings founded upon the same facts.5.That in any event and without prejudice to the foregoing, the application is fatally defective and incompetent in limine, having been brought under repealed and inapplicable provisions of the Act and the Employment and Labor Relations Court (Procedure) Rules.6.That the application is incurably defective, misconceived, lacks merit, and ought to be struck out with costs to the respondent. 10.The respondent further filed a replying affidavit dated 10th March 2026, sworn by Ben Mwaura Ndegwa, its Employee Relations Manager. 11.The respondent avers that it employed the applicant as subordinate staff vide a letter of appointment dated 18th February 1991, and subsequently appointed him as a Teller at Grade Clerk vide a letter dated 20th January 2016. 12.The respondent avers that during the subsistence of his employment, the applicant was issued with various cautionary letters arising from lapses in the discharge of his duties, and by a letter dated 5th February 2004, the Bank expressly warned him that any recurrence of similar lapses would attract more serious disciplinary action. 13.It is the respondent's case that in 2016, the applicant was the subject of investigations by its Forensic Department regarding fraudulent cash withdrawals amounting to Kshs. 2,631,250.00 from Account No. 1136xxxxxx in the name of Joe Onyango Omolo, made on various dates between 7th March 2016 and 31st March 2016. 14.Subsequently, vide a letter dated 20th April 2016, the applicant was placed on suspension pending further investigations, and on 21st April 2016, he was charged before the Chief Magistrates' Court in Milimani Criminal Case No. 649 of 2016 for the offence of stealing by servant contrary to section 281 of the Penal Code. 15.The respondent further avers that vide a letter dated 27th April 2016, the applicant voluntarily resigned from his position, citing that he was "pursuing other engagements in life elsewhere" and reiterating in his employee exit clearance form dated 30th June 2016 that his reason for leaving was a "career change." The Bank accepted the resignation vide a letter dated 30th May 2016, expressly without prejudice to the acts of misconduct alleged prior to the resignation, and the applicant's terminal dues were thereafter duly computed and paid to him in full. 16.It is the respondent's case that the applicant's cause of action, if any, accrued upon the termination of his employment in April 2016, and that time for purposes of limitation began to run from that date. 17.The respondent contends that the pendency of the criminal investigations and subsequent criminal proceedings neither stopped time from running nor precluded the applicant from instituting civil proceedings against the Bank. It avers that the intended suit has been initiated more than eight years after the applicant's resignation, and is therefore manifestly outside the mandatory three-year limitation period prescribed under section 89 of the Employment Act, Cap 226, Laws of Kenya. 18.The respondent further contends that without prejudice to the foregoing, on 13th June 2016, the applicant submitted a loan repayment proposal to the Bank, which the Bank duly responded to on the same date, confirming the amended loan repayment schedule and specifying the applicable interest rates for all his loans, and that by its letter dated 30th May 2016, the Bank had informed the applicant that his loans would be retained at staff interest rates up to 31st May 2016. 19.The respondent asserts that the applicant is effectively asking the court to exercise jurisdiction in a matter where the statutory three-year limitation period has long expired, that the application has no statutory basis, is misconceived, and is an abuse of the process of the court. Applicant’s Submissions 20.The applicant submitted that the respondent has approached this dispute as though it arose solely from a single event in April 2016, and that such characterization is incomplete. 21.He submitted that while the termination of employment forms part of the factual background, his grievance extends to ongoing and continuing conduct by the respondent which has persisted to the present time. He argued that following his forced resignation, the respondent unilaterally converted his staff loan from a preferential interest rate of 6% to a commercial rate of 13%. This decision did not operate as a one-off occurrence but gave rise to a continuous and recurring financial burden through the accrual of elevated interest, imposition of penalties, and sustained threats of sale of his matrimonial home known as Eldoret/Municipality Block 21/Kingongo/4495. 22.He further submitted that the respondent's conduct compelled him in 2022 to dispose of his properties, namely Cherangany/Kapcherop/455 and Kiplombe/Kiplombe Block 9 (MDG)/1203, to sustain himself and meet financial obligations arising from the respondent's actions, and that the threat of auction and financial distress persisted into 2025. 23.The applicant submitted that the injury complained of is not a completed act but a continuing injury within the meaning of section 90 of the Employment Act, and that where a wrongful act continues over time, the cause of action accrues from the date of the last act or from the cessation of the injury. 24.Relying on G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] eKLR, where the Court of Appeal acknowledged that continuing violations give rise to a fresh accrual of time; it was submitted that the limitation period under the second limb of section 90 has not begun to run as the wrongful conduct complained of has not ceased, and that the present application and intended claim are properly before the court. 25.On the question of resignation, the applicant submitted that the respondent's reliance on the resignation letter and exit documentation to suggest a voluntary separation ignores the surrounding circumstances. He argued that at the time of resignation, he had already been arrested, publicly humiliated, and subjected to criminal proceedings without being afforded a disciplinary hearing as required under section 41 of the Employment Act, , therefore, the resignation was not voluntary but induced by duress and constitutes constructive dismissal. He submitted that the mere existence of a resignation letter does not negate the legal reality of the circumstances under which it was made. 26.On the loan correspondence, the applicant submitted that while communication took place between himself and the respondent, such engagement occurred under conditions of severe financial distress following the loss of his employment and cannot be construed as evidence of free or informed consent, and that the respondent's reliance on such correspondence to sanitize its conduct is therefore misplaced. 27.The applicant further submitted that the respondent's actions breached his constitutional rights to fair labour practices, fair administrative action and dignity enshrined under articles 41, 47 and 28 of the Constitution, through the respondent's failure to accord him due process, its role in precipitating a prolonged criminal prosecution without sufficient basis, and its continued imposition of financial hardship. He argued that this court, as a court with constitutional jurisdiction in employment matters, ought to be slow to shut out a litigant where such rights are implicated. 28.On the delay in filing, the applicant submitted that he was engaged in criminal proceedings for approximately nine years, a process that reasonably constrained him from instituting parallel civil proceedings on the same subject matter, and that upon acquittal he acted promptly. 29.It was submitted that the delay was not occasioned by indolence but by circumstances beyond his control. He further submitted that the respondent will suffer no prejudice if the application is allowed, as the relevant records remain within its custody and the facts are well documented, whereas he stands to suffer grave injustice if denied an opportunity to ventilate his claim after years of service and subsequent exoneration. 30.The applicant urged the court to find that his claim arises from continuing violations that persist to date, falls within the ambit of section 90 of the Employment Act, and that the interests of justice favour determination of the dispute on its merits. Respondent’s Submissions 31.The respondent submitted on two issues: whether the Application is unmerited, warranting it to be struck out with costs to the Respondent; and whether the Application is fatally defective and incompetent in limine. 32.On the first issue, the respondent submitted that it is common ground that the applicant tendered his resignation on 27th April 2016, which was accepted by the Bank vide its letter dated 30th May 2016, therefore, the cause of action, if any, accrued upon the termination of employment in 2016. 33.It was submitted that time for purposes of limitation began to run from that date, and pursuant to section 89 of the Employment Act, the applicant had three years from 27th April 2016 within which to institute civil proceedings, a period that lapsed on 27th April 2019. Rekaince was placed on Benjamin Wachira Ndiithi v Public Service Commission & another [2014] KEELRC 1060 (KLR), where the court held that the accrual of a cause of action in a claim emanating from an employment contract takes effect from the date of termination as stated in the letter communicating the termination, and that is the date when time began to run. 34.The respondent further submitted that the limitation period prescribed under section 89 is unqualified, couched in mandatory terms, and makes no reference to any circumstances under which time may be enlarged, and that this court is consequently devoid of jurisdiction to extend the statutory limitation period. It cited Teachers Service Commission v Suji [2023] KEELRC 2923 (KLR), where the court held that the limitation period under section 90 of the Act is rigid and not amenable to extension, stating:“It is therefore clear as day, that the limitation period given under section 90 of the Employment Act is not elastic. No court can extend the three-year period." 35.It is the respondent’s submission that the law does not aid the indolent, and that a litigant who fails to act within the time prescribed by statute cannot seek refuge in the court's discretion where none exists. 36.It was submitted that limitation periods are enacted not as mere technicalities but to achieve substantive justice by ensuring finality, preventing the resurrection of stale claims, and safeguarding respondents from the difficulty of defending claims long after the relevant evidence has dissipated, therefore, the applicant's position is untenable and the Bank would be gravely prejudiced were the application to be allowed. 37.On the applicant's argument of a continuing cause of action, the respondent submitted that such proposition is misconceived and devoid of legal merit. It argued that the applicant enjoyed preferential interest rates solely by virtue of his employment, and that upon termination, the applicant submitted a loan repayment proposal on 13th June 2016 to which the Bank responded on the same date, confirming the amended repayment schedule and specifying applicable interest rates, with loans being maintained at staff rates up to 31st May 2016 in accordance with the separation terms. It submitted that it expressly advised the applicant to ensure timely servicing of his loan obligations failing which the facilities would be converted to public terms. 38.It was submitted that it is a clear mischaracterization of the facts for the applicant to contend that the lawful conversion of the loan from staff preferential rates to commercial rates following cessation of employment constitutes a continuing cause of action. 39.On the Applicant's reliance on G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] eKLR, the respondent submitted that such reliance is misconceived and wholly erroneous, as the Court of Appeal in that case categorically held that claims brought outside the statutory limitation period are time-barred and specifically rejected the notion that unpaid terminal dues constitute a continuing injury. The respondent argued that the applicant has grossly misapprehended and misrepresented the ratio decidendi of that case. 40.On the applicant's explanation that criminal proceedings constrained him from instituting civil proceedings, the respondent submitted that this issue has been settled by the Court of Appeal in Attorney General & another v Andrew Maina Githinji & another [2016] eKLR, where Kiage JA held that an acquittal from criminal charges is not a prerequisite to a claim under the Employment Act. It further relied on Sammy Thuo Kangea v County Government of Nakuru & another [2019] eKLR“In employment and labour relations claims, time does not stop running for whatever reason(s). Once time is lapsed an extension is also not permissible under any law.” 41.The respondent urged the court to find that the application to extend time is unmerited, has no basis in law, and that the court is divested of jurisdiction to proceed further. 42.On the second issue, the respondent submitted that the application is incurably defective, having been brought under section 90 of the Act and rule 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016, which are repealed and inapplicable provisions. 43.It was submitted that following the 24th Annual Supplement gazetted as Legal Notice No. 221 of 2023, the Employment Act was renumbered, and the applicable limitation provision is now section 89 of the Employment Act, Cap 226, read together with rule 18 of the Employment and Labour Relations Court (Procedure) Rules, 2024. The respondent cited Michael Mungai v Housing Finance Company (K) Ltd & 4 others [2017] eKLR, where the Supreme Court held that:“In the case of Hermanus Phillipus Steyn v. Giovanni Gnnechi-Ruscone, Supreme Court, Application No. 4 of 2012…….. The court stated that: it is trite law that a court of law has to be moved under the correct provisions of the law. …… It is sadder that he has the audacity to even invoke provisions of repealed pieces of legislations. No court can be moved on the basis of a repealed law. What right if at all does a repealed law give? The answer is clear: none.” 44.I have examined all the averments and submissions of the parties herein. The applicant seeks orders to allow him file this cause out of time from the time he was dismissed in 2016. The applicant has explained why he did not file the cause in time citing fear of prejudicing his defence. 45.That as it may be, section 89 of the Employment Act 2007 states as follows:89.Limitations notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap 22), 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 continuing injury or damage within twelve months next after the cessation thereof. 46.Under the law, a claim under the Employment Act should be filed with 3 years unless it is a continuing injury claim. The claim for wrongful termination is definitely not a continuing injury claim and there is no valid reason given by the applicant as to why he did not file his claim within the time allowable. 47.As it were, the law is couched in mandatory terms and does not envisage any extension of time from the maximum prescribed under the law. Once the period envisaged lapses, no extension can be granted. Given this position. I find that the application for extension of time is not capable of being granted. I therefore dismiss this application accordingly. There shall be no order of costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF JUNE, 2026.HELLEN WASILWAJUDGE