[2014] KEELRC 532 (KLR)
The court found that the claim was filed more than sixteen years after the cause of action arose, far outside the statutory limitation periods prescribed by both the repealed Trade Disputes Act and the Employment Act, 2007. No application for enlargement of time was made, and such enlargement is not permissible...
Source-derived case information.
- Citation
- [2014] KEELRC 532 (KLR)
- Parties
- Claimant: Samuel Ochieng Sagati; Respondent: China Jiangsu International Limited; Respondent: Yiang Guo (Director); Respondent: Wang Biao (Director); Respondent: Labour Commissioner
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1969 of 2012
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- suit dismissed as time-barred; preliminary objection upheld
- Legal Topics
- Limitation of Actions, Employment Contracts, Preliminary Objection, Statutory Time Bars
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Ochieng Sagati
Claimant
China Jiangsu International Limited
Respondent
Yiang Guo (Director)
Respondent
Wang Biao (Director)
Respondent
Labour Commissioner
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim was filed within the statutory limitation period for employment disputes.
- 2 Whether the court has jurisdiction to entertain a claim filed out of time without an application for enlargement of time.
Ratio Decidendi
The court found that the claim was filed more than sixteen years after the cause of action arose, far outside the statutory limitation periods prescribed by both the repealed Trade Disputes Act and the Employment Act, 2007. No application for enlargement of time was made, and such enlargement is not permissible under the relevant statutes unless the injury is continuing, which was not the case here. Consequently, the court upheld the preliminary objection and dismissed the suit as time-barred, awarding costs to the respondents.
Court Disposition
suit dismissed as time-barred; preliminary objection upheld
Orders
- The suit is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
CAUSE NO. 1969 OF 2012
SAMUEL OCHIENG SAGATI ..................................................... CLAIMANT
VERSUS
CHINA JIANGSU INTERNATIONAL LIMITED ................... 1ST RESPONDENT
YIANG GUO (DIRECTOR) ................................................ 2ND RESPONDENT
WANG BIAO (DIRECTOR) ............................................... 3RD RESPONDENT
LABOUR COMMISSIONER .............................................. 4TH RESPONDENT
Mr. Juma for the Claimant
Mr. Karuga for the Respondents
RULING
1. This suit was filed via a memorandum of claim dated 2nd October, 2012 on the same date.
2. The cause of action from the said memorandum of claim arose on 7th January 1996, when the Claimant stopped working at a building site of the Respondent and purports to have reported the dispute to the Ministry of Labour and Human Resource Development although no documentation evidence alleged report.
3. The Claim was brought more than sixteen (16) years from the date the cause of action arose.
4. The Claim was lodged without an application to the Court for enlargement of time.
5. A notice of preliminary objection was filed by the Respondents on 18th September, 2013.
6. It is now trite that a claim based on contract, including a labour matter may not be filed upon expiry of six (6) years if the cause of action arose before 2007, in terms of the repealed Trade dispute Act Cap 234 of the Laws of Kenya.
7. Further, if the cause of action arose after the Employment Act, 2007 came into operation in the year 2008, it may only be filed within 3 years in terms of Section 90 of the said Act.
8. There having been no application for enlargement of time, which in any event is not permissible in terms of both the limitation of Actions Act Cap 22of the Laws of Kenya and the Employment Act of 2007, unless the injury is a continuing one in which event time stops to run, one year after the cessation of the continued injury or damage, the claim was filed out of time.
Accordingly the preliminary objection is upheld with the result that the suit is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 4th day of April, 2014.
MATHEWS N. NDUMA
PRINCIPAL JUDGE