[2019] KEELRC 1160 (KLR)
The court found that the Claimant's cause of action arose on 27 February 2009 and that the statutory limitation period of three years under section 90 of the Employment Act expired on or around 26 February 2012. The claim was filed on 24 August 2017, more than eight years after the cause of action accrued. The court...
Source-derived case information.
- Citation
- [2019] KEELRC 1160 (KLR)
- Parties
- Claimant: William Kamau Nganga; Respondent: Lari Dairies Alliance Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1655 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- Claim struck out as time-barred for want of jurisdiction.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Limitation Periods, Redundancy, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Kamau Nganga
Claimant
Lari Dairies Alliance Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is time-barred under section 90 of the Employment Act, 2007.
- 2 Whether the court has jurisdiction to hear a claim filed outside the statutory limitation period.
- 3 Whether limitation is a procedural or jurisdictional issue.
Ratio Decidendi
The court found that the Claimant's cause of action arose on 27 February 2009 and that the statutory limitation period of three years under section 90 of the Employment Act expired on or around 26 February 2012. The claim was filed on 24 August 2017, more than eight years after the cause of action accrued. The court held that limitation is not merely a procedural issue but affects the jurisdiction of the court. As such, the claim was time-barred and the court lacked jurisdiction to entertain it. The preliminary objection was upheld and the suit was struck out.
Court Disposition
Claim struck out as time-barred for want of jurisdiction.
Orders
- The Memorandum of Claim is struck out for being time-barred under section 90 of the Employment Act, 2007.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 1655 OF 2017
WILLIAM KAMAU NGANGA CLAIMANT
v
LARI DAIRIES ALLIANCE LTD RESPONDENT
RULING
1. In a Memorandum of Claim lodged with the Court on 24 August 2017, William Kamau Nganga (Claimant) stated the Issues in Dispute as
1. Unfair, irregular and unlawful termination of the Claimant’s employment with the Respondent.
2. Failure by the Respondent to follow the trite provisions of the Employment Act No. 11 of 2007 and due process in terminating the Claimant’s employment and breach of Article 41 of the Constitution.
3. Payment of the Claimant’s terminal dues and 12 months’ gross salary compensation for unfair termination.
2. On 9 October 2017 the Respondent filed a Notice of Preliminary Objection contending that
1. The suit, as instituted, is bad in law and incompetent and the same ought to be struck out with costs.
2. The Claim is time barred under the provisions of section 90 of the Employment Act.
3. The Claimant, therefore, has no locus standi to bring the current proceedings before this Honourable Court.
4. This Honourable Court, therefore, lacks jurisdiction to hear the same.
3. In response to the preliminary objection, the Claimant filed submissions on 29 November 2017. The Respondent filed List of Authorities on 1 July 2019, and the Court took brief submissions on 8 July 2019.
4. In paragraph 9 of the Memorandum of Claim, the Claimant pleaded that the Respondent terminated his employment on account of redundancy on 27 February 2009.
5. The Claimant in his submissions, contended that the issue of limitation was procedural which should not triumph over the need to do substantive justice. The Claimant particularly called to his aid Article 159 of the Constitution.
6. The cause of action advanced by the Claimant is clearly employment contract anchored.
7. In terms of section 90 of the Employment Act, 2007, the Claimant should have instituted legal proceedings within 3 years.
8. The 3 years lapsed on or around 26 February 2012. The instant Cause was filed on 24 August 2017, some 8 years after the cause of action accrued.
9. The cause of action, in the view of the Court, is caught up by the limitation prescriptions of section 90 of the Employment Act, 2007.
10. And because limitation is not merely a procedural issue but goes to jurisdiction (see Divecon v Samani(1995-1998) EA 48), the Court will uphold the preliminary objection and strike out the Memorandum of Claim.
11. No order as to costs.
Delivered, dated and signed in Nairobi on this 12th day of July 2019.
Radido Stephen
Judge
Appearances
For Claimant Mr. Ochieng instructed by J.M. Njengo & Co. Advocates
For Respondent Mr. Munyori instructed by Kamau Kuria & Co. Advocates
Court Assistant Lindsey