REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MOMBASA
CAUSE NO. E060 OF 2023
[Misc. Appl. E060 OF 2023]
LESLEY MAGHANGA ……….. APPLICANT
VERSUS
CORRUGATED SHEETS …………. RESPONDENT
RULING
The claim herein was registered as CAUSE NO. E060 OF 2023. It has since been changed to Misc. Appl. E060 of 2023. This is a serious manipulation of the records.
The applicant filed an application dated 20 February 2025 seeking orders.
- Spent.
- Kioko Patrick Somba (Advocate) be allowed to come on record for the applicant.
- This court be pleased to set aside the orders of 15 February 2024 dismissing the suit and do issue an order reinstating the same
- The costs of this application be borne by the respondent.
The applicant supported the application. He avers that his suit was dismissed for non-attendance on 15 February 2024 without his knowledge, and he was unaware until his new advocates perused the file. The applicant is ready and willing to take a hearing date on his case once the application is allowed. The notice to show cause issued by the court and served to the former advocates was not brought to the applicant's attention. The applicant should not be punished for the acts of his former advocates who failed to attend court.
There is a good cause relating to employment and payment of terminal dues.
In reply, the respondent filed the Replying Affidavit of Evans Mungai, the human resource manager, averring that the applicant filed this matter on 20 December 2023 and failed to serve. The respondent only became aware of these proceedings upon service of the instant application.
On 5 February 2024, the court called up the matter for hearing directions, but the applicant did not take any steps to prosecute the application. On 15 February 2024, the matter was dismissed for non-attendance. No reasons were advanced for the delay until 20 February 2025, when the new advocate is said to have perused the file.
There is no evidence of the applicant's efforts to seek instructions from his advocate. The delay in prosecuting the matter is not addressed, and the respondent should not be punished for the applicant's indolence.
Determination
On 20 December 2023, the applicant filed his application dated 3 December 2023 seeking to file his employment claim out of time. His case was that he was the son of the late Chrispin Maghanga, an employee of the respondent from 4 February 2000 until his death on 16 August 2011. The deceased's family has not received terminal dues, benefits, or compensation under the Employment Act or the Work Injury Benefits Act. The family only received the sum of Ksh 65. 606 and the monthly salary. No family member could take up the matter since the applicant had not attained 18 years.
The matter came up in court on 5 February 2024, and the applicant was absent.
A notice to show cause was issued to his advocates for attendance on 15 February 2024. There was no attendance, and the matter was dismissed for non-attendance and want of prosecution.
Should the court reinstate the suit?
As outlined above, the matter was noted as a CAUSE, not a misc—application as manipulated. The gist is an application seeking to file a claim for employment benefits out of time. The cause of action is noted to be 16 August 2011, with the demise of the deceased, Chrispin Mwghanga, the father of the applicant.
The applicant, as the right holder in these proceedings, does not state what action has been taken to seek instructions from his advocates after filing this cause on 20 December 2023. Where there were instructions to prosecute the suit and seek more time to file the suit, the failure by counsel to act and attend court should be addressed under professional negligence. See George Buoro v Kenindia Assurance Company Limited [2018] KEELRC 1106 (KLR) and the case of Gerald Mugiira v Salesio Elite [2022] KEHC 1142 (KLR), where the court held that the applicant did not explain why he had taken no action or step to have his suit prosecuted. In the Supporting Affidavit, the applicant fails to address the professional negligence against his counsel for inaction leading to the current state of affairs. The mere allegations that his advocates failed to attend court and dismissed the matter without his knowledge are to shift in blame. The applicant instructed his attorneys to attend and file this claim. He had a duty to follow up and get updates.
Even where the application was to be allowed, though no sound basis is given, Employment claims are regulated under the provisions of Section 89 of the Employment Act. Given the context, the orders sought the cause of action that arose on 16 August 2011, way out of the limitation period of 3 years necessary to file a claim on employment benefits. Even in the case of a work-related injury, under the Work Benefits Act, to wait to file a claim for over 12 years is an inordinate delay.
In the case of Mitei v National Social Security Fund Board of Trustees [2022] KECA 974 (KLR), the court held that in the case of actions based on breach of contract of service or arising out of the Employment Act, no court may or shall have the right or power to entertain what cannot be done namely, an action that is brought in contract, six years after the cause of action arose or any application to extend such time for the bringing of the action.
In Maria Machocho v Total Kenya Limited [2013]eKLR and the case of Divecon Ltd v Samani [1995-1998] 1 EA 48, the court held that section 4(1) of the Limitation of Actions Act was clear beyond any doubt and that;
… no one shall have the right or power to bring an action after the end of six years from the date on which a cause of action accrued, an action founded on contract. The corollary to this is that no court may or shall have the right or power to entertain what cannot be done, namely, an action brought in contract six years after the cause of action arose or any application to extend such time for the bringing of the action…….A perusal of Part III shows that its provisions do not apply to actions based on contract. In the light of these explicit statutory provisions, it would be unacceptable to imply, as the learned Judge of the Superior Court did, that 'the wording of section 4(1) of the Limitation of Actions Act (Chapter 22) suggests a discretion that can be invoked.
Claims premised under the provisions of the Work Injury Benefits Act, the motions thereof as of 16 August 2011 were not invoked. Raising a claim such as the one done herein cannot cure the legal lapses.
Related to the findings above, the applicant is acting for and on behalf of his father, the respondent's employee. He has attached the Death Certificate dated 27 August 2021. He has not taken out motions to attend to these proceedings on behalf of the deceased's estate. With the benefits of legal representation, these proceedings cannot cure these lapses.
The application dated 20 January 2025 is without merit and is hereby dismissed with costs to the respondent.
Delivered in open court at Malindi this 3 day of April 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Denis