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Kamunyi v Inoi Farmers Co-operative Society Ltd (Miscellaneous Cause E009 of 2021) [2023] KEELRC 445 (KLR) (20 February 2023) (Ruling)
Neutral citation:
[2023] KEELRC 445 (KLR)
Republic of Kenya
Miscellaneous Cause E009 of 2021
ON Makau, J
February 20, 2023
Between
Francis Kamunyi
Applicant
and
Inoi Farmers Co-operative Society Ltd
Respondent
Ruling
1.This ruling relates to the Notice of Motion dated October 13, 2021 brought under section 27 and 28 of the Limitation of Actions Act and all other enabling provisions of the law. The motion seeks leave to file suit against the respondent out of time.
2.The main reasons for the delay in filing suit is because parties were negotiating settlement but failed to agree. Secondly, the applicant lacked money to file suit in time owing to loss of employment.
3.The application is opposed by the respondent vide grounds of opposition dated December 14, 2021. In brief the respondent avers that the application is misconceived, bad in law and an abuse of the court process. Further the application does not meet the threshold set out under section 22 of the Limitation of Actions Act.
4.I have considered the averments and the submissions by the two sides. The main issue for determination is whether leave should be granted to the applicant to file suit against the respondent out of time.
5.The cause of action herein was termination of applicant’s employment on September 28, 2007 and as such it was governed by Section 4 (1) of the Limitation of Actions Act which limited the period for filing suit to 6 years. The said period lapsed on September 28, 2013.
6.In Anadet Kalia Musau v Attorney General & 2 others [2020] eKLR the Court of Appeal held that:-
7.In Devecon v Samani [1995-1998] 1 EA p 48 the Court of Appeal stated as follows:
8.The foregoing binding precedents are to the effect that a court of law cannot extend the limitation period set by the statute for filing suits founded on contract, including employment contract. The court has neither jurisdiction nor discretion in such matters. Even parties cannot confer jurisdiction by consent to entertain a time barred suit. Consequently, the Application dated October 13, 2021 is incompetent and without merits and it is dismissed with costs.
DATED, SIGNED AND DELIVERED AT NYERI THIS 20TH DAY OF FEBRUARY, 2023.ONESMUS N MAKAUJUDGEOrderIn view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on April 15, 2020, this ruling has been delivered to the parties online with their consent, the parties having waived compliance with rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.ONESMUS N MAKAUJUDGE
