[2018] KEELRC 111 (KLR)
The court found that the petitioners' claim, being based on an employment contract, was subject to the six-year limitation period under section 4(1) of the Limitation of Actions Act. The cause of action arose in 2001, and the limitation period expired in 2007. The petitioners did not provide any justifiable reason...
Source-derived case information.
- Citation
- [2018] KEELRC 111 (KLR)
- Parties
- Applicant: Paul Abuto Obwon & 61 Others; Respondent: Muhoroni Sugar Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 25 of 2017
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition struck out for want of jurisdiction
- Judges
- MN Nduma
- Legal Topics
- Limitation of Actions, Constructive Dismissal, Unpaid Leave, Receivership, Jurisdiction, Terminal Dues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Paul Abuto Obwon & 61 Others
Applicant
Muhoroni Sugar Company Limited
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petition is time-barred under section 4(1) of the Limitation of Actions Act.
- 2 Whether disguising a contract claim as a constitutional petition circumvents limitation statutes.
- 3 Whether the court has jurisdiction to hear the matter after expiry of the limitation period.
Ratio Decidendi
The court found that the petitioners' claim, being based on an employment contract, was subject to the six-year limitation period under section 4(1) of the Limitation of Actions Act. The cause of action arose in 2001, and the limitation period expired in 2007. The petitioners did not provide any justifiable reason for failing to pursue their claims within the prescribed period, nor did they raise any genuine constitutional or transitional justice issues. The court held that it lacked jurisdiction to entertain the suit, as no court is permitted to extend the limitation period for contract claims, and presenting the matter as a constitutional petition could not revive a time-barred claim....
Court Disposition
petition struck out for want of jurisdiction
Orders
- The petition is struck out for want of jurisdiction.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
PETITION NO. 25 OF 2017
(Formerly Kisumu HC Petition No. 25 of 2012)
(Before Hon. Justice Mathews N. Nduma)
PAUL ABUTO OBWON & 61 OTHERS...........................PETITIONERS
VERSUS
MUHORONI SUGAR COMPANY LIMITED.................RESPONDENT
JUDGMENT
1. The Petition was filed on 30th April, 2012 by 62 Petitioners.
2. From the face of the Petition the cause of action arose on 30th April, 2001 when the Petitioners were placed on unpaid leave for a minimum period of 120 days via a general circular headed ‘Unpaid Leave’.The Respondent was subsequently placed under receivership and the Petitioners were not recalled back to work. It is not in dispute that the Petitioners were not paid their terminal dues. In the words of the petitioners, placing them on indefinite unpaid leave amounted to constructive dismissal of employment.
3. The Petition is opposed vide a replying affidavit filed on 8th November, 2012 in which Preliminary Objection is raised to the effect that the suit, based on termination of employment contract, now disguised as a Constitutional Petition is time barred by dint of section 4(1) of the Limitation of Actions Act Cap 22 Laws of Kenya, the cause of action, if at all, having arisen immediately after the expiry of 120 days from the date the Petitioners were placed on unpaid leave. Therefore it is submitted the cause of action arose on 30th October, 2001 and time within which to file the suit expired six (6) years later, being on or about 30th October, 2007.
4. The court is bound to determine the preliminary objection first as guided by the decision of the Court of Appeal in Mukisa Biscuits Case.
5. From the facts of the case which are not in dispute, the Petitioner does not raise any constitutional violations based on the 1963, erstwhile Constitution of Kenya.
6. Similarly no transitional justice issues have been raised in this matter.
7. It is the court’s considered finding that the decision by Hon. Justice Isaac Lenaola (as he then was) in HCCC at Nairobi Petition No. 204 of 2013, Njuguna Githiru vs The Attorney General is not applicable to the circumstances of this case.
8. The Petitioners have not preferred any justifiable reason why they did not make their claims as against the receiver manager within the six years limitation period.
9. Indeed, following the Court of Appeal decision in Devicon case, no court is permitted to extend limitation of time within which to file a suit based on contract upon expiry of six (6) years limitation period. Disguising the suit as a constitutional petition does not suffice.
10. Accordingly, this court lacks jurisdiction to dwelve into the merits of this suit. The same is struck out for want of jurisdiction.
Dated, Signed and Delivered in Kisumu this 6thday of December, 2018
Mathews N. Nduma
Judge
Appearances
Joseph N. Musomba & Co. Advocates for Claimant
Otieno Ragot & co. Advocates for the Respondent
Chrispo – Court Clerk