Kenya Union of Commercial, Food & Allied Workers v National Social Security Fund [2019] KEELRC 964 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 392 OF 2015

(Before Hon.  Justice Mathews N. Nduma)

KENYA UNION OF COMMERCIAL, FOOD AND

ALLIED WORKERS..................................................................... CLAIMANT

VERSUS

NATIONAL SOCIAL SECURITY FUND...............................RESPONDENT

RULING

1. The respondent raised preliminary objection to the claim in the memorandum of response filed on 5th November 2015 to the effect that the suit is time barred by dint of Section 90 of the Employment Act, 2007.

2.  From the facts not in dispute, the grievants were dismissed from employment on 21st September 2011 and the claimant filed the suit on their behalf on 5th November 2015 three years and Eleven months from the date the cause of action arose.

3.  Following the decision in the case of Fred Mudave Gugo vs G4S Security Services (K) Ltd (2014) eKLR and the Court of Appeal decision in Devicon case, the court lacks jurisdiction to entertain a suit filed more than three (3) years from the date the cause of action arose.

4.  In the present case, no application for extension of time was filed prior to the filing of the suit.  Even if one had been filed, the extension of time cannot be granted on a claim founded on contract of employment.

5.  Accordingly, the court lacks jurisdiction to entertain the suit out of time and the suit is struck out with no order as to costs.

Ruling Dated, Signed and delivered this 30th day of July, 2019

Mathews N. Nduma

Judge

Appearances

Mr. Dickens Ouma for Respondent/Objector

Mr. Charles Egesa for Claimant

Chrispo – Court Clerk