Issue a). Whether the suit is time barred under Section 90 of the Employment Act, 2007.
8.It was submitted for the Respondent that the Court does not have jurisdiction to entertain a suit filed out of time nor the court have jurisdiction to extend time to file suit out of time pursuant to Section 90 of the Employment Act.
10.Rightly so, Section 90 of the Employment Act is framed in mandatory terms that a claim based on a contract of employment must be filed within 3 years. This Court is denied jurisdiction to extend time to file suits not lodged with the court within 3 years from the date the cause of action arose. Section 90 of the Act provides that:
11.The court holds that pursuant to section 90 of the Employment Act the limitation period, the court lacks jurisdiction to extend time in matters based on an employment contract. The period can only be extended in claims founded on tort and only when the applicant satisfies the requirements of Sections 27 and 28 of the Limitation of Actions Act which provisions do not apply in employment and labour relations claims.
12.For avoidance of doubt the Court has perused the prayers in the Claimant’s Statement of Claim being (a) to (i) and, it is clear that the prayers are with respect to an employment contract and further challenge the merit of its decision which then become an issue of appeal.
13.Termination of an employment contract kicks in from the date stated in the letter of termination, and in the instant suit, the Claimant’s letter of dismissal from employment was dated October 8, 2018. This was the time the cause of action herein arose and this day marked the beginning of the count down to the three years’ statute limitation period. The instant suit was filed on the March 16, 2023. This was outside the three years period.
14.The Cclaimant ought to have filed suit with regard to the summary dismissal within three years therefrom. Conspicuously, the Claimant had filed another suit Bungoma ELRC Cause No61 of 2018, Walubengo Singoro Muliro Vs Kibabii University on October 29, 2018, which had been filed within the allowed statutory timelines, the issue regarding this suit will be determined as a different issue.
15.The Claimant asserted in his submissions that he had come to court without delay and the delay in coming to court had been occasioned by the pendence of the previous suit Bungoma ELRC Cause No61 of 2018, Walubengo Singoro Muliro Vs Kibabii University which had not been determined and that he could only file the instant suit after the earlier suit was struck out on a technicality.
17.The Claimant did not place before this court an application for extension of time which could have steered this court’s finding on whether the matter merited an extension of time. An application for extension of time must be made before a matter is filed. Submissions do not amount to an application. Guided by the Supreme Court’s decision in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, Supreme Court Application No 16 of 2014 eKLR which laid out the principles governing the grant of extension of time :-
18.As no application for extension of time was made before it, the court cannot therefore determine such an application alluded to by a party in its submissions. The court further holds it lacks jurisdiction to extend time of filing claims under section 90 of the Employment Act which provides:-
19.What this court is called to consider is whether the instant suit was filed within the stipulated statutory timelines available for such a suit.
20.The Claimant having been dismissed on October 8, 2018, the fact that this suit was filed 4 years 5 months and 8 days later, denotes that the suit was filed one year 5 months and 8 days late and outside the limitation period of three years.
21.Pursuant to Section 90 of Employment Act, such cannot be cured in any other way save for the court to stop as there is no jurisdiction.
Issue b. Whether the instant suit is res judicata?
22.Having decided that this court lacks jurisdditon to hear the instant suit having being filed out of time; I will nevertheless consider the issue of res judicata raised in this application.1.The respondent has submitted that the instant suit is res judicata having being heard and determined in Bungoma ELRC Cause No61 of 2018, Walubengo Singoro Muliro v Kibabii University where a judgement was delivered in December 1, 2022.
23.The Claimant in a concession submitted that indeed a suit had been filed but the same was dismissed on technical grounds and not on merit and that precipitated the filing of the current suit.
24.The law pertaining to the doctrine of res judicata is captured under the provision of Section 7 of the Civil Procedure Act as follows:
26.It is not in dispute that the parties in Bungoma ELRC Cause No 61 of 2018, Walubengo Singoro Muliro v Kibabii University are the same paries in the current suit.
27.It is not in dispute that the issue in ELRC Cause No61 of 2018, of unfair termination, is the same issue in the current suit and brought by the same parties.
28.The court in ELRC Cause No61 of 2018 heard the matter and considered the parties cases and delivered a judgement on December 1, 2022 as follows:-
29.The Claimant was heard on merit and the court upon considering the parties’ documents pronounced itself that the claimant’s case was founded on an illegality.
30.The court is guided by the decision in Cosmas Mrombo Moka v Co-operative Bank of Kenya Limited & another  eKLR where Justice P.J.O. Otieno stated as follows: -
“24.The purpose and only object of the res judicata rule is to bring litigation to finality so that nobody is vexed or just harassed with unwarranted litigation and attendant costs over same matter twice or more times over.
“25.That is the only way respect for court process can be built and maintained. Concomitantly, the only purpose of the court is to determine disputes brought before it by parties in a robust and in a fair and proportionate manner. Fair determination connote that the thrust of the dispute has been placed before the court and a determination on the merits rendered. Here determination on the merits need not mean having oral evidence only. It includes consideration of merits even in applications like striking out and summary judgment where the merit of the case or defense is considered, tested and a determination rendered. Where however, the final determination is grounded on lapses like failure to attend court or take steps in prosecuting the case, the court would not have gone into the merits. I am always reminded that ‘the court is often said to exist from the purpose of deciding the rights of the parties not for purpose of imposing discipline.…….”(Emphasis added).
31.A reading of the above decision denotes that, the consideration by a court an application to strike out a suit is considered fair determination on merit. The Respondent in the earlier suit through their statement of defence and submissions stated that the Claimant’s verifying affidavit sworn on October 25, 2018 and witness statement of even date adopted in court were not executed by the claimant and offend the provisions of Oaths and Statutory Declarations Act hence claim was void ab initio and prayed That the document titled authority to swear affidavit and pleadings executed by claimant be struck off.
32.This court vested with competent jurisdiction rendered its judgement holding that the verifying affidavit and the witness statement all dated October 25, 2018 were fatally defective having been signed by unauthorized third party in the name of the claimant and the court struck out the said verifying affidavit and witness statement all dated October 25, 2018 for being illegalities.
33.The Court in the earlier suit held that it could not delve into the suit’s merit when the same could amount to deciding a suit on an illegality. The claim of forgery as was pointed out in the said judgement was not a mere technical issue.
34.The Claimant was at liberty after the judgement in ELRC Cause No61 of 2018, to file an appeal to the said judgement, on the grounds alleged in this instant application that the court failed to consider the merits of the case; rendered judgement dismissing his claim on procedural technicalities and denied the Claimant a fair hearing, however, the Claimant went ahead and filed the instant suit.
35.In any event, even if the current suit had not been rendered res judicata, the instant suit would fail based on the first issue of limitation of time, having being filed beyond the statutory timelines allowed for employment matters.
36.In view of my analysis of the facts and the law herein above, it is my finding that the Respondent’s Preliminary Objection is merited. The upshot is that the Preliminary Objection dated April 3, 2023 succeeds and I hereby order the Claimant’s statement of claim herein be struck out.
37.To temper justice with mercy the suit having not proceeded on merit, the court makes no order as to costs.
38.Right of appeal in 30 days.
39.It is so Ordered.