[2017] KEELRC 1368 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 158 OF 2015

(Before Hon. Lady Justice Maureen Onyango)

SAMUEL ONCHONGA..................................CLAIMANT

-Versus-

KEN-KNIT KENYA LIMITED...................RESPONDENT

R U L I N G

By a Notice of Preliminary Objection filed by the Respondent through Kitiwa & Company Advocates, the Respondent prays that the Claimant's suit be struck out for being time barred.

In the written submissions filed in support of the preliminary objection the Respondent states that the Claimant has pleaded in the Memorandum of Claim that his employment was unfairly terminated by the Respondent on 17th May, 2012 but the suit was filed on 20th May, 2015 after 3 years had lapsed on 17th May, 2015. The Respondent states that this offends section 90 of the Employment Act 2007 which provides that proceedings arising out of a contract of employment or the Act must be brought within 3 years. The Respondent submits that the Claimant did not seek leave to file suit out of time.

The Respondent submits that the suit is therefore an abuse of court process, bad in law and this court has no jurisdiction to entertain the same, that on these grounds the suit ought to be struck out with costs to the Respondent.

The Respondent relied on the following authorities -

1. Gathoni V Kenya Co-operative Creameries Ltd, Civil Application No.122 of 1981

2. Maria Machocho V total (K) Industrial Cause No.2 of 2012

3. Banking Insurance and Finance Union (K) Limited, Industrial Cause No. 1201 of 2012.

4. Muchiko & Another V Telkom (K) Limited, Industrial Cause No.1299 of 2011

5. Nicodemus Marani V Timsales Limited Industrial Cause No.204 of 2013

6. Ngari & Another V Odero (1992)2 E A241

The Claimant filed submissions in response to the Respondent’s submissions on the preliminary objection.

It is admitted that the Claimant's employment was terminated by the Respondent on 17th May, 2015 and the Claim was filed on 20th May 2015, being 2 days late as 17th May, 2017 fell on a Sunday. It is submitted for the Claimant that a clerk in the Claimant's advocates office by the name Kenneth Maiyo was sent to file the Claim on 22nd April, 2015 but did not file until 20th May, 2015 resulting in the lapse of limitation period by 2 days. It is submitted that this arose out of ignorance of the said Kenneth Maiyo about the essence of filing urgently. It is submitted that the innocent litigant who has worked a significant time of his life on employment should not be deprived or punished due to the negligence of other persons, and that the Claimant should be allowed to ventilate his claim, that 2 days delay is insignificant and that the court has jurisdiction to determine this matter on the merits.

The Claimant prays that the preliminary objection be dismissed with costs.

Determination

I have considered the pleadings, the notice of preliminary objection and the submissions in respect thereto by both the Respondent and the Claimant. It is not in dispute that the Claimant's employment with the Respondent terminated on 17th May, 2012. It is further not disputed that the claim was filed on 20th May, 2015 after the lapse of the limitation period. It is further not disputed that no leave was sought by the Claimant before filing the Claim.

Section 90 of the Employment Act 2007 provides as follows -

90. Limitations

Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.

The limitation period having lapsed before the claim was filed, it is filed two (2) days out of time as conceded by the claimant. As expressly provided in section 90 in mandatory terms, no suit arising out of the Act or a contract of employment may be filed out of time. It does not matter whether the lapse is only a day or a year or longer. The Act does not provide for a measure of the extent of the delay. What matters is that the limitation period has lapsed.

The Employment Act does not provide for extension of limitation period which in any event the Claimant did not apply for. The jurisdiction of courts is provided for by law. A court cannot arrogate to itself a jurisdiction that it does not have. In all the cases relied upon by the Respondent, the thread in the decisions is that the court has no jurisdiction to extend limitation period. Ongaya J in Nicodemus Marani v Timsales Limited in Industrial Court Cause No.204 of 2013 put it aptly, that ''No power of the court has been established empowering the court to extend the time of 3 years prescribed in section 90 of the Employment Act to justify the court's entertainment of the suit outside the three year limitation period.''

For the foregoing reasons, I uphold the preliminary objection with the result that I strike out the Claimant's suit on grounds that it is statute barred.

There shall be no orders for costs.

Dated and signed and delivered this 16th day of March, 2017

MAUREEN ONYANGO

JUDGE