[2014] KEELRC 461 (KLR)
The court held that Section 90 of the Employment Act provides a strict three-year limitation period for employment claims and does not allow for extension of time. Section 27 of the Limitation of Actions Act, which permits extension of limitation periods, applies only to tort claims and not to contract claims such...
Source-derived case information.
- Citation
- [2014] KEELRC 461 (KLR)
- Parties
- Applicant: Rodgers Cheche Ashinya; Respondent: Brother Shirts Factory Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Cause 21 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Chamber Summons for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- DO Ogal
- Legal Topics
- Limitation Periods, Extension of Time, Employment Termination, Procedural Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rodgers Cheche Ashinya
Applicant
Brother Shirts Factory Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Chamber Summons for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the court can grant leave to file an employment claim out of time under the Limitation of Actions Act.
- 2 Whether Section 90 of the Employment Act allows for extension of limitation period for employment claims.
- 3 Whether the applicant has provided sufficient justification for the delay in filing the claim.
Ratio Decidendi
The court held that Section 90 of the Employment Act provides a strict three-year limitation period for employment claims and does not allow for extension of time. Section 27 of the Limitation of Actions Act, which permits extension of limitation periods, applies only to tort claims and not to contract claims such as employment disputes. The applicant failed to provide sufficient explanation for the delay, did not plead disability, fraud, mistake, or ignorance of material facts attributable to the respondent, and did not specify when he became aware that his claim was time-barred. The court found no legal basis or justifiable grounds to grant the extension sought and dismissed the...
Court Disposition
application dismissed
Orders
- The application for leave to file suit out of time is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
MISC. CAUSE NO. 21 OF 2014
RODGERS CHECHE ASHINYA....................................................CLAIMANT
VERSUS
BROTHER SHIRTS FACTORY LIMITED...............................RESPONDENT
RULING
By an ex parte Chamber Summons application dated 24th December 2013 the applicant seeks the following orders.
1. That this Honourable Court be pleased to grant leave to the Applicant to file a suit/institute proceedings against the Respondent out of time.
2. That the costs of this application be costs in the course.
The application is supported by the affidavit of the Applicant Rodgers Cheche Ashinya sworn on 24th December 2013.
In the affidavit he depones that he was employed by the Respondent on 1st May 1995 on short term contracts that were renewed immediately they expired. In 2007 the Respondent started issuing to him short fixed term contracts. His last contract was to expire on 30th December 2009. He was however unfairly terminated on 4th December 2009. His claim is for Shs. 498,943/- as particularized in the attached Memorandum of Claim. He instructed the firm of T.K Rutto & Company Advocates to pursue his claim. The said firm wrote demand letters to the Respondent. He however changed advocates and instructed Rautta & Company Advocates to pursue the claim. He was dealing with Frankline Okoth whom he later learnt was not qualified and had left the firm without filing his claim. By the time he learnt about this the claim was already statute barred. The failure to file in time was therefore not deliberate but due to circumstances beyond his control.
Extension of Limitation period is provided for under Part III of the Limitation of Actions Act. Claims in employment contracts are however provided for in Section 90 of the Employment Act which provides that such claims must be filed within 3 years. The Employment Act however does not provide for extension of Limitation period which must therefore be done under the Limitation of Actions Act.
The application herein is made under Section 27 of the Limitation of Actions Act, Section 1A, 1B and 3A of the Civil Procedure Act and Order 37 Rule 6(1) of the Civil Procedure Rules and all other enabling provisions of the law. The Civil Procedure Act is not applicable to the procedure in this court, which is governed by the Industrial Court (Procedure) Rules 2010. Section 27 of the Limitation of Actions Act provides for extension of limitation period only for claims in tort, and not contracts as in the present case.
Even if the court had discretion to grant the prayers, the applicant has not stated in the application when he instructed Franklin Okoth whom he claims held himself out to be an advocate. If the Claimant’s dismissal was on 4th December 2009, he should have filed his claim by 4th December 2012 according to Section 90 of the Employment Act.
The application herein is made on 28th February 2014, more than 15 months after the lapse of the limitation period. This delay of 15 months after the lapse of limitation period has not been explained at all. No date is assigned to the time when the Claimant realized his claim was time barred. He has not pleaded disability or fraud, mistake or ignorance of material facts which he could not discover with reasonable diligence, that is attributable to the Respondent.
I find that the claimant has not made out a justifiable case to warrant the extension of limitation period within the limited circumstances provided in the Limitation of Actions Act.
For these reasons I find the application without merit and dismiss the same.
Delivered and signed in open court on 7thday of April2014
HON. LADY JUSTICE MAUREEN ONYANGO
JUDGE
In the presence of:
Ms. Musyoka for Applicant / Claimants