Margaret Wangui Kimani v Telkom Kenya Limited [2015] KEELRC 1410 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

MISC. APP NO. 109 OF 2014

MARGARET WANGUI KIMANI………..…………………………CLAIMANT

VERSUS

TELKOM KENYA LIMITED………………........………………..RESPONDENT

RULING

1.     By an ex-parte chamber summons dated 14th August 2014 the applicant seeks leave of Court to file a suit out of time.

2.     The application was brought on the ground that the cause of action arose on or about 13th February, 2006 hence exceeding 3 years statutory period required by law.  The application is further grounded on the fact that the respondent had been making promises of paying the claimant thus the option of instituting a suit was not an option until the respondent disregarded the claimant’s concerns.

3.     Section 90 of the Employment Act provides as follows:-

“…Notwithstanding the provisions of section 4(1) of the Limitation of Action Act, no civil action or proceedings based or arising out of this Act 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 a continuing injury or damage, within twelve months next after the cessation thereof.”

4.     Section 4 (1) of the Limitation of Action Act lists actions which may be brought prior to expiry of six years from the date on which the cause of action accrued.  Section 4(2) of the said Act however provides that actions based on tort may not be brought after expiry of three years from the date on which the cause of action accrued.

5.     However, under section 27 of the Act actions based on tort may be brought after the expiry of three years provided the Court has granted leave to do so prior to or after the commencement of the action.

6.     Section 90 of the employment Act referred to above, as well as section 4(1) of the Limitation of Actions Act do not provide for extension of time to bring actions based on contracts.  This therefore means no extention of time is permissible for these actions once limitation has elapsed.  To this extent this application cannot be granted hence stands dismissed with costs.

7.     It is so ordered.

Dated at Nairobi this 27th day of January 2015

Abuodha J. N.

Judge

Delivered this 27th day of January 2015

In the presence of:-

……………………………………………………………for the Claimant and

………………………………………………………………for the Respondent.

Abuodha J. N.

Judge