[2024] KEELRC 1048 (KLR)

Ondeche v Kenya Horticultural Exporters (1977) Limited (Cause E194 of 2023) [2024] KEELRC 1048 (KLR) (9 May 2024) (Ruling)

Neutral citation: [2024] KEELRC 1048 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E194 of 2023

BOM Manani, J

May 9, 2024

Between

Petro Okoth Ondeche

Claimant

and

Kenya Horticultural Exporters (1977) Limited

Respondent

Ruling

Background 1. The instant suit seeks to enforce an award by the Director of Occupational Safety and Health (the Director) which was rendered in favour of the Claimant on 18th December 2015. Whilst the award was made on 18th December 2015, this action was instituted on 10th March 2023, more than seven (7) years down the line.

2. The Respondent has objected to the action on account of the limitation of actions period that is set under section 90 of the Employment Act. It is the Respondent’s contention that the action is time barred. As such, the court has no jurisdiction to entertain it.

3. Section 90 of the Employment Act provides as follows:-“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.’’

4. This provision bars the institution of suits to enforce a claim arising from the Employment Act or a contract of employment generally after the lapse of three years from the date on which the cause of action accrued. The only exception to this bar is in respect of continuing injury claims which must be instituted within twelve months from the date of cessation of the injury. Further, the provision explicitly ousts the application of section 4(1) of the Limitation of Actions Act to claims covered under it.

5. The Claimant argues that his claim does not arise from the provisions of the Employment Act. Neither is it premised on the employment contract between the parties. As such, it is not covered by the limitation period that is provided under section 90 of the Act.

6. The Claimant contends that his action is covered by section 4(1)(d) of the Limitation of Actions Act since it is an action for recovery of a sum that is recoverable by virtue of a written law. In his view, the written law that authorizes this recovery is the Work Injury Benefits Act and not the Employment Act. As such, his suit ought to have been filed within six years from the date of assessment of the award by the Director.

7. The Claimant contends that even though he did not file the claim within the six year period that is provided by law, time for filing the action was extended as a result of the Respondent’s acknowledgement of its obligation to settle the award on 31st December 2021. He relies on section 23(3) of the Limitation of Actions Act to advance this argument.

8. On its part, the Respondent argues that the action arises from an employment relation. As such, it is covered by section 90 of the Employment Act. This provision specifically ousts the application of section 4(1) of the Limitation of Actions Act. As such, this suit having been instituted more than three years from the date of the Director’s award is time barred. Consequently, the court lacks jurisdiction to entertain the matter.

Analysis 9. Work injury claims under the Work Injury Benefits Act arise in the context of an employment relationship. That the foregoing is the position is clear from the preamble to the Act which provides that it is ‘’an Act of Parliament to provide for compensation to employees for work related injuries and diseases contracted in the course of their employment and for connected purposes.’’ As such, for one to be able to institute proceedings under the Work Injury Benefits Act, he must demonstrate that the injury or disease for which he seeks compensation arose in the course of his employment.

10. Thus, the Claimant’s argument that the instant action falls outside the purview of section 90 of the Employment Act is misplaced. The action, in so far as it seeks to enforce compensation for an injury that occurred during employment, is connected to and founded on the contract of employment between the parties. As such, it ought to have been filed within three years of the Director’s award.

11. Section 90 of the Employment Act explicitly excludes the application of section 4(1) of the Limitation of Actions Act to suits founded on contracts of employment. As such, the Claimant cannot invoke section 4(1)(d) of the latter Act to advance the argument that the suit is not time barred.

12. The Employment Act does not provide for extension of the time that is set under section 90 thereof. If it was Parliament’s intention that the time that is set under the provision can be extended, nothing would have prevented it from stating as much. As such, I do not think that it is open to a litigant to sidestep the express provisions on limitation of time under the Employment Act and seek refuge under the Limitation of Actions Act to file a suit that is otherwise time barred.

Determination 13. The upshot is that the court finds that the preliminary objection by the Respondent on account of limitation of time has merit.

14. The Claimant’s suit was instituted outside the timelines that are set under section 90 of the Employment Act.

15. As such, the court has no jurisdiction to entertain it.

16. Accordingly, the suit is struck out with costs to the Respondent.

DATED, SIGNED AND DELIVERED ON THE 9TH DAY OF MAY, 2024. B. O. M. MANANIJUDGEIn the presence of:…………… for the Claimant…………… for the RespondentORDERIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M MANANI