[2015] KEELRC 1593 (KLR)
The court found that the claimant's cause of action arose on 28th July, 2006, upon exhaustion of the internal disciplinary appeal process, as evidenced by the claimant's affidavit and supporting letter. The suit was filed on 16th July, 2007, well within the limitation periods prescribed by Section 3(2) of the Public...
Source-derived case information.
- Citation
- [2015] KEELRC 1593 (KLR)
- Parties
- Claimant: Obadiah Mutisya Kitonyi; Respondent: The Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1001 of 2014
- Procedural Posture
- Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Limitation of Actions, Employment Contracts, Public Authority Limitation, Internal Disciplinary Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Obadiah Mutisya Kitonyi
Claimant
The Hon. Attorney General
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claimant's suit is time barred under Section 3(2) of the Public Authority Limitation Act Cap. 39.
- 2 Whether the claim is in contravention of Section 90 of the Employment Act, 2007 regarding limitation periods for employment claims.
- 3 Whether the court has jurisdiction to entertain the suit given the alleged time bar.
Ratio Decidendi
The court found that the claimant's cause of action arose on 28th July, 2006, upon exhaustion of the internal disciplinary appeal process, as evidenced by the claimant's affidavit and supporting letter. The suit was filed on 16th July, 2007, well within the limitation periods prescribed by Section 3(2) of the Public Authority Limitation Act and Section 4(1) of the Limitations of Actions Act. The Employment Act, 2007, which provides a three-year limitation period under Section 90, was enacted after the aforementioned statutes and does not operate to bar the claim. The court held that an employee cannot be expected to pursue court action concurrently with internal appeal processes, as this...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CAUSE NO. 1001 OF 2014
OBADIAH MUTISYA KITONYI ………………..........................…… CLAIMANT
VERSUS
THE HON. ATTORNEY GENERAL……………......................… RESPONDENT
RULING
1. The Respondent filed a Notice of Preliminary Objection to wit;
the Claimant’s suit is time barred contrary to Section 3(2) of Public Authority Limitation Act Cap. 39;
The claim is also in contravention of Section 90 of the Employment Act, 2007 which bars claims based on employment contract be filed after 3 years from the date the cause of action arose.
2. The court therefore lacks jurisdiction to entertain the same.
3. The objection is opposed vide a Replying Affidavit of the Respondent.
4. The Claimant states that the cause of action arose on 28th July, 2006, when he exhausted the internal disciplinary machinery of the Respondent upon receiving the result of the final Appeal. The letter is attached to the Affidavit and marked ‘OMK1’.
5. This suit was subsequently filed on 16th July, 2007 less than one year from the time the cause of action arose.
6. It is indisputable therefore that this suit was filed within the time frame set out under Section 3(2) of the Public Authority Limitation Act Cap. 39 of the Laws of Kenya and Section 4(1) of the Limitations of Actions Act Cap. 22 of the Laws of Kenya.
7. Furthermore the Employment Act, 2007 was enacted after the above two legislations and Section 90 of the Act, applies for the purposes of limitation of actions based on employment contract.
8. The Section provides for a three year limitation period.
9. An employee cannot be expected to await completion of the internal statutory appeal process and be in court at the same time. This would render the inter appeal process academic.
10. The Preliminary Objection is dismissed accordingly.
11. Costs in the cause.
Dated at Nairobi this 30th day of April, 2015.
MATHEWS N. NDUMA
PRINCIPAL JUDGE