Justus Ochido Ope v Kenyatta University [2016] KEELRC 937 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO 430 OF 2015

JUSTUS OCHIDO OPE...............................................................CLAIMANT

VS

KENYATTA UNIVERSITY........................................................RESPONDENT

RULING

1. This ruling flows from a preliminary objection raised by the Respondent by notice dated 12th May 2016. The objection is based on the following grounds:

a. That the Claimant’s claim is misconceived, raises no reasonable cause of action and is an abuse of the court process;

b. That the Claimant’s claim is barred by limitation of time as stipulated under Section 90 of the Employment Act;

c. That the Court has no jurisdiction to entertain the Claimant’s claim which ought to be struck out with costs.

2. When the parties appeared before me on 16th May 2016 they agreed to proceed by way of written submissions.

3. In its submissions filed on 6th June 2016, the Respondent submits that the Claimant filed a claim for unfair termination on 19th March 2015, citing his termination date as 22nd October 2010.

4. On his part the Claimant submits that the objection raised by the Respondent is misconceived as the claim was filed pursuant to leave granted by the Court on 19th February 2015.

5. It is the Claimant’s case that this Court cannot interfere with the leave already granted.

6. The Respondent’s objection is based on Section 90 of the Employment Act, 2007 which provides that:

Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of thisAct or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.

7. Jurisprudence on limitation of claims falling under the Employment Act, 2007 is now fairly well developed. In Maria Machocho v Total Kenya Limited [2013] eKLRRadido Jheld that this Court has no jurisdiction to extend time for filing of claims falling under the Employment Act, 2007. I held the same in George Hiram Ndirangu v Equity Bank [2015] eKLR.

8. The Claimant drew the attention of the Court to an order made by Wasilwa J on 19th February 2015 by which he was granted leave to file suit after the limitation period.

9. This order was however granted ex parte and as held by the Court of Appeal inMary Wambui Kabugu v Kenya Bus Services Ltd (Civil Appeal No 195 of 1995)leave granted ex parte does not bar a party from raising an objection on the same issue on which the leave was granted. This is what the Respondent has done and the Court must hear them.

10. The Claimant was dismissed on 22nd October 2010 and his claim which is subject to the Employment Act, 2007 ought to have been filed not later than 21st October 2013. The claim filed on 19th March 2015 was therefore way out of time and this Court has no jurisdiction to extend time nor entertain the claim.

11. The result is that the Claimant’s claim is struck out with no order for costs.

12. Orders accordingly.

DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF JULY 2016

LINNET NDOLO

JUDGE

Appearance:

Mr. Ogutu for Claimant

Mr. Wetangula for the Respondent