[2014] KEELRC 65 (KLR)
The court found that the applicant's contract was terminated in 1982 and that the delay in bringing the claim—over 32 years—was not adequately justified. The medical report relied upon was prepared 27 years after termination and did not convincingly explain the entire period of delay. The correspondence presented...
Source-derived case information.
- Citation
- [2014] KEELRC 65 (KLR)
- Parties
- Applicant: Muyange Thumba; Respondent: Kenya Ports Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 22 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Claim Out of Time
- Outcome
- application dismissed
- Legal Topics
- Limitation of Actions, Termination of Employment, Mental Health and Capacity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muyange Thumba
Applicant
Kenya Ports Authority
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Claim Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to institute a claim against the Kenya Ports Authority out of time.
- 2 Whether the applicant's mental illness constitutes sufficient cause for the delay in filing the claim.
- 3 Whether negotiations and correspondence with the respondent justify the delay.
Ratio Decidendi
The court found that the applicant's contract was terminated in 1982 and that the delay in bringing the claim—over 32 years—was not adequately justified. The medical report relied upon was prepared 27 years after termination and did not convincingly explain the entire period of delay. The correspondence presented did not cover the period between 1982 and 2005, further undermining the applicant's explanation. The court concluded that the intended claim was stale and that it would be prejudicial and impractical for the respondent to answer to such an old claim. Consequently, the court declined to grant leave to file the claim out of time.
Court Disposition
application dismissed
Orders
- The application dated 13th October 2014 is declined.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT
AT MOMBASA
MISC. APPLICATION NO. 22 OF 2014
MUYANGE THUMBA...................................................................APPLICANT
VERSUS
KENYA PORTS AUTHORITY.............................INTENDED RESPONDENT
(Coram)
Rika J,
C/A – B. Kombe
Mr. Mokaya holding brief for Mrs. Maina for Claimant
N/A for Respondent
R U L I N G
Mr. Muyange Thumba filed an ExparteNotice of Motion, seeking leave to institute Claim against the Kenya Ports Authority out of time.
The application is dated 13th October 2014, and based on the Supporting Affidavit of the Applicant, sworn on 16th October 2014.
It came up for hearing on 7th November 2014. The Applicant adopts his Supporting Affidavit, and urges the Court to grant the order for Leave.
The Court Finds:-
1. The Claimant was employed by the Kenya Cargo Handling Services Limited, predecessor to Kenya Ports Authority. It is not clear from his Supporting Affidavit what his role was, or on which date he was employed.
2. His contract was terminated with effect from 1st August 1982.
3. He explains the long delay in moving the Court, on mental illness, which he says he has suffered since 1982.
4. The Medical Report showing his condition was however, prepared 27 years after termination, on 14th July 2009. Curiously, the Report recommends that the applicant be retired, and paid all his dues. His contract was terminated in 1982.
5. Delay is also attributed to negotiations between his Advocates and the KPA. In support of this ground, the Applicant displayed letters exchanged between his Advocates and KPA; between him and KPA; and between his Member of Parliament and KPA. His Advocates' letters were written in 2014, the MP's in 2013 and his own in 2005. There is not a single letter between 1982 and 2005.
6. The Intended Respondent points out, not without some merit, that the Applicant should have pursued any terminal dues against his former Employer KCHSL, in 1982. The Intended Claim, 32 years after the event, would be very difficult for the Intended Respondent to answer to. The Intended Claim has gone stale.
7. The Court is not in a position to assist. IT IS ORDERED:-
a. The Application dated 13th October 2014 is declined.
Dated and delivered at Mombasa this ….5th .....day of …......December.....2014
James Rika
Judge