[2017] KEELRC 1445 (KLR)
The court found that the claimant's suit was filed more than three years after the alleged unlawful termination of employment, contrary to Section 90 of the Employment Act, 2007. The claimant did not seek leave to file the suit out of time, nor did he respond to the preliminary objection. The absence of a defence or...
Source-derived case information.
- Citation
- [2017] KEELRC 1445 (KLR)
- Parties
- Claimant: Mustapha Barasa; Respondent: Eldoret Grains Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Cause 157 of 2016
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- claim struck out as time barred
- Judges
- DKN Marete
- 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
Mustapha Barasa
Claimant
Eldoret Grains Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claimant's suit is time barred under Section 90 of the Employment Act, 2007.
- 2 Whether the court has jurisdiction to entertain a suit filed outside the statutory limitation period without leave.
- 3 Whether the claim should be struck out for being an abuse of court process.
Ratio Decidendi
The court found that the claimant's suit was filed more than three years after the alleged unlawful termination of employment, contrary to Section 90 of the Employment Act, 2007. The claimant did not seek leave to file the suit out of time, nor did he respond to the preliminary objection. The absence of a defence or rebuttal to the limitation argument left the court with no basis to allow the claim. The court held that it lacked jurisdiction to entertain the suit, which was time barred and constituted an abuse of court process. Consequently, the claim was struck out with costs to the respondent.
Court Disposition
claim struck out as time barred
Orders
- The claimant's suit is struck out for being time barred under Section 90 of the Employment Act, 2007.
- The claimant shall pay costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT KERICHO
CAUSE NO. 157 OF 2016
(BEFORE D. K. N. MARETE)
MUSTAPHA BARASA…………............CLAIMANT
VERSUS
ELDORET GRAINS LIMITED……...RESPONDENT
RULING
This is an application by way of a preliminary objection dated 6th December, 2016 as follows;
That at the hearing of this claim the Respondent shall raise a preliminary objection that the Claimant’s claim is time barred and should be struck out with costs.
When the matter came for hearing on 23rd February 2017, it was set for determination by way of written submissions.
It is not defended or at all. This is despite service to the Claimant/Respondent.
The Applicant/Respondent in her written submission dated 25th January 2017 and also in support of the application comes out as follows;
It is important for the Honourable court to note that the claimant in his memorandum alleged that his employment contract was unfairly and unlawfully terminated by the Respondent on 20th April, 2011. He filed the
suit on 18th November, 2016. This is after 5 years 6 months had lapsed. The claimant’s right to sue the respondent for the alleged unfair and unlawful termination lapsed at the latest on 20th April, 2011.
Again,
Section 90 of the Employment Act of Kenya, 2007, clearly states that notwithstanding the provisions of Section 4 (1) of the Limitation of Actions Act, Cap 22, all civil actions or proceedings arising out of the Act or a contract of service such as the one in this case, shall be filed within 3 years. Furthermore, the claimant did not seek the leave of the court to file suit out of time as required by law. Therefore, the claimant’s suit having been filed after 3 years had lapsed, without seeking leave for the same, is time barred under Section 90 of the Act. This claim is therefore an abuse of the court’s process, bad in law and this honorable court has no jurisdiction to entertain it and the same ought to be struck out with costs to the respondent.
This matter is made the poorer by the absence of a defence. Whereas limitation of action on grounds of time bar can be defended by interventions in rebuttal by able respondents, this is lacking in the circumstances. The answer is total silence on the part of the claimant. I am therefore inclined to agree with the respondent and dismiss the preliminary application with costs.
Delivered, dated and signed this 26th day of April 2017.
D.K.Njagi Marete
JUDGE
Appearances
1. Mr. Mugumia holding brief for Mr. Kitiwa instructed by Kitiwa & Company Advocates for the Respondent.
2. No appearance for the Claimant.