[2005] KEHC 1278 (KLR)
The court held that the applicant's claim, arising from alleged unlawful dismissal from employment, was subject to the limitation periods set out in the Public Authorities Limitation Act, not the Limitation of Actions Act provisions for negligence. The applicant's delay in filing suit, explained by his pending...
Source-derived case information.
- Citation
- [2005] KEHC 1278 (KLR)
- Parties
- Applicant: Timothy M. Mukalo; Respondent: Reuben Alubale Shiramba; Respondent: Josephine Beeti Shilosio; Respondent: Zadock Likono; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 696 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- ARM Visram
- Legal Topics
- Limitation Periods, Unlawful Dismissal, Extension of Time, Public Service Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy M. Mukalo
Applicant
Reuben Alubale Shiramba
Respondent
Josephine Beeti Shilosio
Respondent
Zadock Likono
Respondent
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file suit out of time against the Government of Kenya for unlawful dismissal from employment.
- 2 Whether Sections 27 and 28 of the Limitation of Actions Act apply to the applicant's claim.
- 3 Whether the delay in filing the suit is excusable under the law.
Ratio Decidendi
The court held that the applicant's claim, arising from alleged unlawful dismissal from employment, was subject to the limitation periods set out in the Public Authorities Limitation Act, not the Limitation of Actions Act provisions for negligence. The applicant's delay in filing suit, explained by his pending appeal to the Public Service Commission, did not amount to a legal disability as contemplated by the statute. The statutory time limits had expired, and the applicant failed to demonstrate any valid ground for extension. Consequently, the application to file suit out of time was dismissed as both inordinate and unsupported by law.
Court Disposition
application dismissed
Orders
- The application to file suit out of time is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
Misc Application 696 of 2004
TIMOTHY M. MUKALO …………………………………. APPLICANT
VERSUS
REUBEN ALUBALE SHIRAMBA ………...……… 1ST RESPONDENT
JOSEPHINE BEETI SHILOSIO …………..……… 2ND RESPONDENT
ZADOCK LIKONO …………………………...……. 3RD RESPONDENT
ATTONERY GENERAL ………………..…………. 4TH RESPONDENT
RULING
This is an application to file suit out of time and is brought under Sections 27 and 28 of the Limitation of Actions Act, Cap 22.
The suit is brought against the Attorney General on behalf of the Government of Kenya, and three other individuals, one of whom is described as a Chief in Lugari District. It is not clear who the other two individuals are and why they have been enjoined. It is apparent that the Plaintiff’s claim is for special damages arising out of his unlawful dismissal from employment as Assistant Chief in Lugari District.
The cause of action arose on 25th January, 2001 when the applicant was dismissed from his employment with the Government of Kenya. He brought this application more than three years after the cause of action arose. His explanation for this delay is that his appeal to the Public Service Commission (PSC) in respect of his termination was, and still is, pending and that he wanted to await its outcome, but believes that the Public Service Commission is no longer interested.
Sections 27 and 28 of the Limitation of Actions Act relied upon by the applicant are inapplicable because this is not an action based in negligence. In any event, Section 3 (2) of the Public Authorities Limitation Act, Cap 39 prescribes a time limit of three years from the date of the cause of action for the filing of a suit against the Government of Kenya, arising out of an action in contract. The time limit for actions in tort is even less – 12 months from the date of the cause of action.
The reason cited in this application for not filing the suit in time is not good, and in any event does not constitute “disability” envisaged by Section 5 of Cap 39. In addition, the delay is inordinate, and accordingly, this application is dismissed.
Dated and delivered at Nairobi this 4th day of October, 2005.
ALNASHIR VISRAM
JUDGE