[2015] KEELRC 830 (KLR)
The court held that section 90 of the Employment Act is explicit in requiring that all actions based on the Act or a contract of service must be commenced within three years of the act complained of. The Act does not provide for any extension of this limitation period. The claimant's application for leave to file...
Source-derived case information.
- Citation
- [2015] KEELRC 830 (KLR)
- Parties
- Claimant: Patrick Okwiri Obima; Respondent: Del Monte Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2311 of 2012
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- Suit and Originating Summons struck out as statute barred; preliminary objection upheld with costs.
- Legal Topics
- Limitation Periods, Extension of Time, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Okwiri Obima
Claimant
Del Monte Kenya Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is statute barred under section 90 of the Employment Act.
- 2 Whether the court has jurisdiction to extend time for filing claims based on employment contracts.
Ratio Decidendi
The court held that section 90 of the Employment Act is explicit in requiring that all actions based on the Act or a contract of service must be commenced within three years of the act complained of. The Act does not provide for any extension of this limitation period. The claimant's application for leave to file the suit out of time was therefore incompetent, and both the suit and the application were struck out. The preliminary objection by the respondent was upheld, and costs were awarded to the respondent.
Court Disposition
Suit and Originating Summons struck out as statute barred; preliminary objection upheld with costs.
Orders
- The suit and the Originating Summons dated 4th March, 2015 are declared incompetent and struck out.
- The preliminary objection succeeds with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 2311 OF 2012
PATRICK OKWIRI OBIMA…………………………………….CLAIMANT
VERSUS
DEL MONTE KENYA LIMITED……………………………RESPONDENT
RULING
1. The respondent in this matter raised in limine an objection that the claim herein is statute barred, the claimant on the other hand filed an Originating Summons dated 4th March, 2015 seeking leave of Court to file a suit out of time.
2. As rightly submitted by Counsel for the respondent, the Originating Summons is an acknowledgment that the suit was filed out of time.
3. Concerning whether it is possible to extend time to commence actions based on employment contracts, section 90 of the Employment Act is not only clear in so far as it states that “no civil action or proceedings based on arising from out of the Act or a contract of service in general shall lie or instituted unless it is commenced within three years next after the act complained of. The Act further makes no provision for extension of time. The case law on this issue is very consistent both by the Court of Appeal, while considering the possibility of extending time for actions based on contracts, as well as the decisions by my colleagues in this Court concerning actions founded on the Employment Act or contract of employment generally. It would therefore make no useful purpose to review these decisions to come to the same conclusion. I am however grateful to counsel for the respondent for his good research and analysis of these authorities.
4. In conclusion this suit and the Orignating Summons dated 4th March, 2015 are hereby declared incompetent and are struck out with the consequence that the preliminary objection succeeds with costs.
5. It is so ordered.
Dated at Nairobi this 19th day of June 2015
Abuodha J. N.
Judge
Delivered this 19th day of June 2015
In the presence of:-
……………………………………………………………for the Claimant
and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge