[2013] KEELRC 490 (KLR)
The court held that since the cause of action arose before the enactment of the Employment Act, 2007, the applicable law regarding limitation was the Limitations Act, Cap 22. Section 4(1) of the Act prescribes a six-year limitation period for actions founded on contract. The suit, having been filed within six years...
Source-derived case information.
- Citation
- [2013] KEELRC 490 (KLR)
- Parties
- Applicant: Zadock O. Oloo; Respondent: Denhill Engineering
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 10 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection Regarding Limitation Period
- Outcome
- application dismissed; suit to proceed
- Legal Topics
- Unlawful Termination, Limitation Periods, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zadock O. Oloo
Applicant
Denhill Engineering
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection Regarding Limitation Period
Legal Issues
- 1 Whether the suit was filed within the applicable limitation period under the relevant law.
- 2 Which statute governs limitation for employment disputes arising before the Employment Act, 2007.
Ratio Decidendi
The court held that since the cause of action arose before the enactment of the Employment Act, 2007, the applicable law regarding limitation was the Limitations Act, Cap 22. Section 4(1) of the Act prescribes a six-year limitation period for actions founded on contract. The suit, having been filed within six years from the date the cause of action arose, was therefore not time-barred. The application challenging the suit on grounds of limitation was dismissed, and the suit was allowed to proceed on its merits.
Court Disposition
application dismissed; suit to proceed
Orders
- The application dated 6th September, 2011 is dismissed with costs.
- The suit should take its normal course.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
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ZADOCK O. OLOO………………….…………………………………CLAIMANT
VS
DENHILL ENGINEERING……….......…………..………………….. RESPONDENT
Amadi for Claimant
Juma for Respondent
RULING
This matter was filed before the Chief Magistrate’s Court Milimani on 29th October, 2007 as Cause No. CMCC 948/07. The cause of Action arose on 11th April 2006 when the employment of the plaintiff was allegedly unlawfully terminated by the defendant.
On 23rd May, 2011, the Chief Magistrate made an order directing the matter be filed at the Industrial Court asserting that it was the proper court to handle the matter. The Industrial Court Misc. Appl. No. 10 of 2011 was filed accordingly on 6th September, 2011 which is five years and 5 months after the cause of action arose.
At the time the cause of action arose, the current Employment Act, 2007 had not been enacted and the law applicable to employment disputes then was the Employment Act, Cap.226 (now repealed).
As I stated in Industrial Court Cause No.1075 of 2010 and in the Industrial Court Cause No.375 of 2011 Daniel Songa Sila –Vs- Property Development & Management Ltd, the erstwhile Act did not have a limitation clause as is the case with Section 90 of the Employment Act, 2007.
This being the case the present dispute is governed by the Limitations Act, Cap 22 of the Laws of Kenya and in particular Section 4(1) thereof which provides:-
“the following actions may not be brought after the end of six (6) years from the date on which the cause of action accrued:-
(a)Actions founded on contract may not be brought after the end of six (6) years from the date on which the cause of action accrued.
(b)Actions to recover a sum recoverable by virtue of a written law, other than a penalty of forfeiture.
(c)Actions including relief for which no other period of Limitations is provided by this Act or by any other written Law”.
This provision covers the present suit as it is founded on contract and/or claims recoverable by virtue of written Law.
The court finds therefore that the Limitation period applicable to this suit
is six (6) years from the date on which the cause of action arose and therefore was filed at the Industrial Court within the Limitation period.
The Application dated 6th September, 2011 is dismissed with costs and
the suit should take its normal course.
It is so ordered.
DATEDandDELIVERED at Nairobi this 13th day of March, 2013.
Mathews N. Nduma
PRINCIPAL JUDGE