Omar v Sheikh Zayed Children Welfare [2024] KEELRC 2334 (KLR)

Omar v Sheikh Zayed Children Welfare (Miscellaneous Cause E047 of 2023) [2024] KEELRC 2334 (KLR) (26 September 2024) (Ruling)

Neutral citation: [2024] KEELRC 2334 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Miscellaneous Cause E047 of 2023

AK Nzei, J

September 26, 2024

Between

Mohammed Ali Omar

Applicant

and

Sheikh Zayed Children Welfare

Respondent

Ruling

1. The application before me for determination is the Applicant’s Notice of Motion dated 13th September 2023 and expressed to be brought under Sections 1, 1A, 3 and 3A of the Civil Procedure Act, Section 4(1)(a) of the Limitation of Actions Act and Order 51 Rules 1 and 2 and Order 12 Rule 7 of the Civil Procedure Rules. The Applicant seeks orders:-a.That the Applicant be granted leave to file suit against the Respondent out of time.b.That the intended suit annexed to the application be deemed to have been filed within time.

2. The application is based on a supporting affidavit of Yusuf Mahmoud Aboubakar Advocate sworn on 13th September 2024. It is deponed in the said affidavit that vide a letter dated 15th November 2019, the Respondent gave the Applicant a notice of termination of the Applicant’s employment contract on ground of retirement. That the termination notice was unfair as it contravened the terms of the Applicant’s employment contract. That although the Applicant’s claim/documents were duly drawn and prepared by the said deponent, the documents were inadvertently misplaced in the deponent Advocate’s office, leading to delay in filing suit. That mistakes of Counsel ought not to be visited on his innocent clients.

3. The application is opposed by the Respondent vide a replying affidavit of Abubakar Hassan Dindia sworn on 20th February 2024. It is deponed in the said replying affidavit that the Applicant was lawfully terminated as he had attained the mandatory retirement age, that the Applicant has no legal claim against the Respondent as his dues were fully paid and all leave days taken; and that the Applicant’s Advocate lacks locus standi to swear an affidavit in support of the application. That failure to file suit resulted from negligence on the part of the Applicant’s Advocate, for which the Respondent cannot be blamed.

4. Section 89 (formerly Section 90) of the Employment Act provides as follows:-“Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, (Cap 22), 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 continuing injury or damage within twelve months next after the cessation thereof.”

5. The foregoing statutory provision, which is couched in mandatory terms, does not give jurisdiction to Courts to extend time for filing of otherwise statute-barred employment claims. The limitation period provided for in Section 89 (formerly Section 90) of the Employment Act is absolute, and once it lapses on any party regarding any cause of action to which the Section applies, the door to seeking redress is permanently shut on that party. The Court of Appeal stated as follows in the case of Beatrice Kaliai Adagala vs. Postal Corporation of Kenya [2015] eKLR:-“Much as we sympathize with the Appellant if that is true, we cannot help her as the law ties our hands. Section 90 of the Employment Act, which we have quoted verbatim above, is in mandatory terms. A claim based on a contract of employment must be filed within 3 years. As this Court stated in the case of Divecon Limited vs. Simani [1995 – 1998] E.A.P 48, a decision relied upon by Radido, J in Josephat Ndirangu vs. Henkel Chemicals [E.A] Limited [2014] eKLR, the limitation period is never extended in matters based on contract. The period can only be extended in matters founded on tort, and only when the Applicant satisfies the requirements of Sections 27 and 28 of the Limitation of Actions Act.”

6. Section 89 of the Employment Act is an exception to Section 4(1) of the Limitation of Actions Act which provides that claims in contract must be made within 6 years. The summary of all the foregoing is that this Court has no jurisdiction to extend time for filing and/or bringing a claim founded on an employment contract. The Applicant’s Notice of Motion dated 13th September 2023 must, therefore, fail, and is hereby dismissed.

7. Each party shall bear its own costs of the application.

8. It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 26TH SEPTEMBER 2024AGNES KITIKU NZEIJUDGEOrderThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.AGNES KITIKU NZEIJUDGEAppearance:…………………….Applicant……………………Respondent