[2017] KEELRC 1719 (KLR)
The court found that the cause of action arose in 2003 and is governed by the Limitation of Actions Act, which bars actions founded on contract after six years. The court, bound by the Court of Appeal decision in Divecon Limited v Shirinkhanu Sadrudin Samani, held that it lacks jurisdiction to extend time for...
Source-derived case information.
- Citation
- [2017] KEELRC 1719 (KLR)
- Parties
- Applicant: Zachary Omundi Gutwa; Respondent: Teachers Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 10 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Limitation of Actions, Extension of Time, Unlawful Termination, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zachary Omundi Gutwa
Applicant
Teachers Service Commission
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the court has jurisdiction to extend time for filing a suit arising from a contract of employment after the limitation period has lapsed.
- 2 Whether the applicant is entitled to leave to file suit against the respondent out of time.
Ratio Decidendi
The court found that the cause of action arose in 2003 and is governed by the Limitation of Actions Act, which bars actions founded on contract after six years. The court, bound by the Court of Appeal decision in Divecon Limited v Shirinkhanu Sadrudin Samani, held that it lacks jurisdiction to extend time for actions arising from contracts of employment. Consequently, the applicant's request for extension of time to file suit was dismissed as the court is statutorily barred from granting such relief.
Court Disposition
application dismissed
Orders
- The applicant's application for extension of time to file suit is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
MISCELLANEOUS APPLICATION NO 10 OF 2016
ZACHARY OMUNDI GUTWA............................................APPLICANT
VERSUS
TEACHERS SERVICE COMMISSION.........................RESPONDENT
RULING
1. The Applicant’s application brought by Notice of Motion dated 20th January 2016 and filed in Court on 26th January 2016 seeks leave to file suit against the Respondent out of time.
2. The application which is supported by the Claimant’s affidavit sworn on 20th January 2016 is based on the following grounds:
a) That the Applicant was an employee of the Respondent;
b) That the Respondent unprocedurally terminated the Applicant’s employment on 7th February 2003;
c) That the Applicant has used several avenues to have the matter resolved out of court, the last being the Commission on Administrative Justice (Office of the Ombudsman);
d) That by letter dated 20th August 2015, the Office of the Ombudsman informed the Applicant that they had failed to resolve the matter;
e) That the Respondent will not suffer prejudice if the application is allowed.
3. The Applicant’s plea in this application is for extension of time for filing of suit against the Respondent. From the documents filed in Court, the cause of action herein arose in 2003. The applicable limitation law would therefore be the Limitation of Actions Act and Section 4(1)(a) of the Act provides that actions founded on contract may not be brought after the end of six years from the date on which the cause of action accrued.
4. In advancing his case the Applicant drew the attention of the Court to several letters between himself and the Respondent as well as to a complaint to the Commission on Administrative Justice (Office of the Ombudsman).
5. This Court is however bound by the decision of the Court of Appeal inDivecon Limited v Shirinkhanu Sadrudin Samani (Civil Appeal No. 142 of 1997), where it was held that the import of Section 4(1)(a) of the Limitation of Actions Act is that the Court has no jurisdiction extend time for actions arising from contracts, including contracts of employment.
6. That being the case, the Applicant’s application fails and is dismissed with no order for costs.
Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 24TH DAY OF FEBRUARY 2017
LINNET NDOLO
JUDGE
Appearance:
Mr. Nyamweya for the Applicant
No appearance for the Respondent