[2014] KEELRC 1258 (KLR)
The court held that the applicant's delay in filing the claim was not excusable under the law. Waiting for the outcome of an appeal does not constitute a disability as defined by the Public Authorities Limitation Act, and there is no statutory provision allowing extension of time on this basis. The applicant failed...
Source-derived case information.
- Citation
- [2014] KEELRC 1258 (KLR)
- Parties
- Applicant: Samuel Kabiru Wanjiku; Respondent: The Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 43 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Claim Out of Time
- Outcome
- application dismissed
- Judges
- DO Ogal
- Legal Topics
- Limitation of Actions, Extension of Time, Public Authorities Limitation, Employment Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kabiru Wanjiku
Applicant
The Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Claim Out of Time
Legal Issues
- 1 Whether the applicant is entitled to extension of time to file a claim against the government out of time.
- 2 Whether waiting for the outcome of an appeal constitutes a disability under the Public Authorities Limitation Act.
Ratio Decidendi
The court held that the applicant's delay in filing the claim was not excusable under the law. Waiting for the outcome of an appeal does not constitute a disability as defined by the Public Authorities Limitation Act, and there is no statutory provision allowing extension of time on this basis. The applicant failed to demonstrate any disability that would justify extension of the limitation period. The court lacks jurisdiction to grant leave to file the claim out of time in these circumstances, and the application was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for leave to file the claim out of time is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
MISC. NO. 43 OF 2014
SAMUEL KABIRU WANJIKU……………………………………………CLAIMANT
VERSUS
THE HON. ATTORNEY GENERAL ………………………………RESPONDENT
RULING
By an originating summons dated 24th April 2014 and filed in Court on 30th April 2014 the applicant seeks leave to file his claim against the Respondent out of time. He states in the application that he was employed by the Kenya Department of National Police Service as a police constable on 27th July 1986 and worked for 22 years up to July 2009 when he was unfairly dismissed on grounds of desertion of duty. It was alleged that he deserted duty for 227 days after sick leave. He appealed against the decision on 10th June 2009 but has not received any communication on the appeal to date.
The Application is supported by the affidavit of the applicant sworn on 24th April 2014.
The police force is excluded from the application of the Employment Act by Section 3 (2) (b) thereof.
Section 26 of the Government Proceedings Act provides for limitation of actions in the following terms:-
26. Limitation of Actions
Nothing in this Act shall prejudice the right of the Government to rely upon any written law relating to the limitation of time for bringing proceedings against public authorities.
Section 3(2) of the Public Authorities Limitation Act provides that no proceedings founded on contract shall be brought against the Government after the end of three years from the date on which the cause of action accrued.
Section 5 of the Act provides for extension of the limitation period in the case of disability, in which case the claim must be filed within 12 months from the date on which disability ceased.
In the present Application the applicant alleges that he has been waiting for the outcome of his appeal. The response had not been received by him as of the date of filing this application.
An appeal does not constitute a disability. There is no provision in the Act for extension of time due to the failure of the Government to take action.
The applicant has not demonstrated that he was suffering from a disability which prevented him from filing his claim within the limitation period and the law does not cloth this court with the power to expand time for filing claim in the circumstances of this case.
For the foregoing reasons I find the application without merit and dismiss the same.
Orders according.
Dated and delivered at Nairobi this 7th day of July 2014
HON. LADY JUSTICE MAUREEN ONYANGO
JUDGE
In the presence of:
Wangare Ndirangu for Claimant
No appearance for Respondent