[2017] KEELRC 668 (KLR)
The court held that the applicant's claim was time-barred, as the cause of action arose in September 2009 and the statutory three-year limitation period expired in September 2012. Section 90 of the Employment Act is couched in mandatory terms, leaving no discretion to the court to extend time for filing claims under...
Source-derived case information.
- Citation
- [2017] KEELRC 668 (KLR)
- Parties
- Applicant: Solomon Mbeu Kilovoo; Respondent: Seal Honey Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 6 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time
- Outcome
- application dismissed
- Judges
- AN Makau
- Legal Topics
- Limitation of Actions, Extension of Time, Unlawful Dismissal, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Mbeu Kilovoo
Applicant
Seal Honey Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the court can grant leave to extend the limitation period for filing a suit under the Employment Act after the statutory period has lapsed.
- 2 Whether the applicant's circumstances justify extension of time to file suit out of time.
Ratio Decidendi
The court held that the applicant's claim was time-barred, as the cause of action arose in September 2009 and the statutory three-year limitation period expired in September 2012. Section 90 of the Employment Act is couched in mandatory terms, leaving no discretion to the court to extend time for filing claims under the Act once the limitation period has lapsed. The applicant's reasons, including his criminal trial and lack of funds, did not provide a legal basis for extension. Consequently, the court found it lacked jurisdiction to grant the orders sought and dismissed the application.
Court Disposition
application dismissed
Orders
- The Originating Summons dated 10/3/2017 is dismissed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
MISC. 6 OF 2017
SOLOMON MBEU KILOVOO…………………………………………...APPLICANT
VERSUS
SEAL HONEY LIMITED ……………………………………………….RESPONDENT
R U L I N G
1. Before the court is an Originating Summons dated 10/3/2017 seeking for leave to extend time within which to commence suit out of time against the respondent. The summons is supported by the affidavit sworn by the applicant on 10/3/2017. The claimant contends that he was employed by the respondent in 2003 and worked until September 2009 when he was dismissed on allegation of theft of money. Thereafter he was arrested and charged with theft by servant in Criminal case number 3348 of 2009. He remained in remand and after 5 years trial he was acquitted on 23/3/2015. Due to lack of funds, he could not instruct a lawyer until August 2016 when he served demand letter and brought this summons on 14/3/2017.
2. The issue for determination herein is whether leave to extend limitation period can issue. There is no dispute the suit herein is time barred because the cause of action arose in September 2009 when the claimant was dismissed for theft of his employer’s money. His right to sue therefore lapsed in September 2012 after the expiry of 3 years from the date of the dismissal. Section 90 of the Employment Act provides in mandatory terms that no suit founded under the Act or contract of employment general shall be commenced after the lapse of 3 years next from the date when it arose except in the case of continuing damage, injury in default whereby a suit must be commenced within 12 months next after the ceasation of the continuing damage, injury or default. The corollary to foregoing is that no one has the locus standi to sue and the court lacks jurisdiction to sustain a suit commenced after expiry of the limitation period.
3. After considering the submissions by the applicant and the supporting affidavit filed, I find no merits in the summons before the court and I dismiss it.
Dated, signed and delivered this 29th September 2017.
O. N. Makau
Judge