Hellen Mauta Mutinda v County Government of Machakos & Public Service Commission [2017] KEELRC 256 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

CAUSE NUMBER 73 OF 2016

HELLEN MAUTA MUTINDA....................................................CLAIMANT

VERSUS

COUNTY GOVERNMENT OF MACHAKOS.............1ST RESPONDENT

PUBLIC SERVICE COMMISSION...........................2ND RESPONDENT

RULING

1. By a notice of preliminary objection filed on 15th March 2016, the 1st respdont contended that the court should not entertain this suit as the same was time barred as per Section 90 of the Employment Act, 2007.

2. An objection as to limitation of action goes to the jurisdiction of the court.  Under Section 90 of the Employment Act, the court is denied jurisdiction to entertain any matter which is brought past three  years after the accrual of the cause of action and in case continuing injuries twelve months after cessation thereof.  The Act does not make provision for extension of time once the three year period set for filing actions based on the Act or contract of employment generally has lapsed.  It therefore means the court does not have jurisdiction to extend the time once it has lapsed.

3. Computation of limitation period is generally arithmetic.  It can only become a matter of circumstantial and factual analysis if it can be established that there were mandatory procedural steps beyond his control that the potential claimant had to go through before commencement of the suit. For instance if the dispute was refereed to conciliation by the minister, the potential claimant must await the outcome thereof and that is beyond his control.  Time cannot therefore be said to run during the pendency of the outcome of conciliation process.

4. In the matter before me the claimant’s appointment was nullified on 20th March 2012 and encouraged to apply afresh once the 1st respondent advertise for the recruitment exercise.  There is nothing on record to show the claimant disputed the annulment of the contract.  This therefore means the cause of action against the respondent occurred on 20th March 2012 (the date of the letter).

5. The claim herein therefore ought to have been filed by 20th March 2015. It was however filed on 28th January 2016, almost a year after the lapse of the limitation period.  The claim is therefore statute barred and as stated above, the court has no jurisdiction to extend the limitation period once it has lapsed.

6. The preliminary objection is therefore upheld with the consequence that the suit is herby struck out but with no order as to costs.

7. It is so ordered.

Dated at Nairobi this 1st day of December 2017

Abuodha J. N.

Judge

Delivered this 1st day of December 2017

Abuodha J. N.

Judge

In the presence of:-

…………………………………………...…… for the claimant

……………………………………………. for the Respondent

Abuodha J. N.

Judge