1. Through a Memorandum of Appeal dated 15th October, 2024, the Appellant appeals the Ruling of Honourable B. M. Cheloti on the grounds that:
a) The Honourable Magistrate erred in Law and in Fact in failing to consider the duly Filed Notice of Preliminary Objection dated the 9th day of July, 2024 and filed on the same day which was premised on the grounds that the suit was time barred.
b) The Trial Magistrate erred in Law and Fact in allowing the Respondent's Application dated the 10th day of July, 2024 which sought leave extend time for the suit filed out of time to proceed in response to the filed Notice of Preliminary Objection dated the 9th day of July, 2024 filed by the Appellant.
c) The Trial Magistrate erred in Law and Fact in finding that there was no response to the Application dated 10th day of July, 2024 despite the Appellant filing their Notice of Preliminary Objection dated the 9th of July, 2024.
d) The Trial Magistrate erred in Law and Fact in dismissing the Preliminary Objection dated the 9th of July, 2024 and allowing the Respondent's Application dated the 10th day of July, 2024.
2. The Appellant prayed that the ruling dated 23rd September, 2024 be set aside and the Notice of Preliminary Objection dated 9th July, 2024 be upheld.
3. The Appeal was disposed of by written submissions and only the appellant filed submissions.
APPELLANT’S SUBMISSIONS
4. The Appellant’s advocate Mr. Kori submitted that the appellant filed a preliminary objection dated 9th July, 2024 in which it contended that the suit before the lower court was filed out of time contrary to section 90 of the Employment Act hence should be dismissed. In response to the objection, the respondent filed an application dated 10th July, 2024 seeking leave to be heard out of time. According to Counsel, the trial court in its ruling held that the notice of preliminary objection was never properly filed and proceeded to strike it out. The trial court further allowed the respondent’s application for extension of time.
DETERMINATION.
5. The filing of an application to extend time filed by the respondent and which was allowed per incuriam by the trial court, was an admission by the respondent that the suit was statute barred. Laws of limitation contained in Limitation of Actions Act and Employment Act do not seem to admit of extension of time to commence an action once the time provided in those statutes have lapsed. The only situation where time can be extended is with regard to claims in tort. Actions in contract must be brought within six years, action for recovery of land is twelve years and action under Employment Act is three years. The wording of these statutes is couched in mandatory terms and does not give room for the discretion of the Court to extend time once lapsed.
6. The rejection of the appellant’s preliminary objection by the trial court was therefore erroneous but even assuming that there was no preliminary objection, limitation of action goes to the jurisdiction of the Court and the upon discovery can be raised at any stage and the Court whether prompted or suo moto can dismiss such suit for lack of jurisdiction.
7. In the circumstances the appeal is found merited and is hereby allowed and the order of the trial court allowing the respondent’s application to proceed with the suit is hereby set aside and substituted with an order striking out the suit for being statute barred.
8. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division
a) The Honourable Magistrate erred in Law and in Fact in failing to consider the duly Filed Notice of Preliminary Objection dated the 9th day of July, 2024 and filed on the same day which was premised on the grounds that the suit was time barred.
b) The Trial Magistrate erred in Law and Fact in allowing the Respondent's Application dated the 10th day of July, 2024 which sought leave extend time for the suit filed out of time to proceed in response to the filed Notice of Preliminary Objection dated the 9th day of July, 2024 filed by the Appellant.
c) The Trial Magistrate erred in Law and Fact in finding that there was no response to the Application dated 10th day of July, 2024 despite the Appellant filing their Notice of Preliminary Objection dated the 9th of July, 2024.
d) The Trial Magistrate erred in Law and Fact in dismissing the Preliminary Objection dated the 9th of July, 2024 and allowing the Respondent's Application dated the 10th day of July, 2024.
2. The Appellant prayed that the ruling dated 23rd September, 2024 be set aside and the Notice of Preliminary Objection dated 9th July, 2024 be upheld.
3. The Appeal was disposed of by written submissions and only the appellant filed submissions.
APPELLANT’S SUBMISSIONS
4. The Appellant’s advocate Mr. Kori submitted that the appellant filed a preliminary objection dated 9th July, 2024 in which it contended that the suit before the lower court was filed out of time contrary to section 90 of the Employment Act hence should be dismissed. In response to the objection, the respondent filed an application dated 10th July, 2024 seeking leave to be heard out of time. According to Counsel, the trial court in its ruling held that the notice of preliminary objection was never properly filed and proceeded to strike it out. The trial court further allowed the respondent’s application for extension of time.
DETERMINATION.
5. The filing of an application to extend time filed by the respondent and which was allowed per incuriam by the trial court, was an admission by the respondent that the suit was statute barred. Laws of limitation contained in Limitation of Actions Act and Employment Act do not seem to admit of extension of time to commence an action once the time provided in those statutes have lapsed. The only situation where time can be extended is with regard to claims in tort. Actions in contract must be brought within six years, action for recovery of land is twelve years and action under Employment Act is three years. The wording of these statutes is couched in mandatory terms and does not give room for the discretion of the Court to extend time once lapsed.
6. The rejection of the appellant’s preliminary objection by the trial court was therefore erroneous but even assuming that there was no preliminary objection, limitation of action goes to the jurisdiction of the Court and the upon discovery can be raised at any stage and the Court whether prompted or suo moto can dismiss such suit for lack of jurisdiction.
7. In the circumstances the appeal is found merited and is hereby allowed and the order of the trial court allowing the respondent’s application to proceed with the suit is hereby set aside and substituted with an order striking out the suit for being statute barred.
8. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division