African Marine and General Engineering Company Limited v Philip (Appeal E234 of 2024) [2026] KEELRC 231 (KLR) (29 January 2026) (Judgment)

African Marine and General Engineering Company Limited v Philip (Appeal E234 of 2024) [2026] KEELRC 231 (KLR) (29 January 2026) (Judgment) Neutral citation: [2026] KEELRC 231 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal E234 of 2024 M Mbarũ, J January 29, 2026 Between African Marine and General Engineering Company Limited Appellant and Kang’A Job Philip Respondent (Being an appeal from the ruling of Hon. Lewis Gacheru delivered on 28 October 2024 in Mombasa CMERC No. E273 of 2024) Judgment 1.The appeal arises from the ruling delivered on 28 October 2024 in Mombasa CMELRC No. E273 of 2024. The appellant seeks that the ruling arising from the Preliminary objections to the application of section 89 of the [Employment Act](/akn/ke/act/2007/11) (The Act), challenging the suit before the lower court as time-barred, be allowed. 2.The appeal is that the respondent filed his suit out of time before the trial court, contrary to section 89 of the Act. The learned magistrate erred in law and fact by finding that the objections lacked merit and, accordingly, had jurisdiction to hear the suit. However, under section 89 of the Act, the cause of action arose with the termination of employment, and time lapsed on 3 May 2024, not 4 May 2024, whereas the suit was filed on 9 May 2024; as such, it is time-barred. Allowing the suit to proceed is contrary to the law and the principles of stare decisis. 3.The appellant submitted that the suit before the trial court was filed on the basis that the respondent’s contract of employment was terminated on 24 April 2021 through a notice dated 25 March 2021. He filed suit on 9 May 2024, a month after the limitation period had lapsed. The respondent asserted that, under Order 50 Rule 4 of the Civil Procedure Rules, time was extended by 72 days, which is incorrect in light of section 89 of the Act, which provides for a 3-year time limit. 4.In Kenya National Examination Council v Republic, ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the court held that where the court fails to enquire into an issue, the question of nullity can be raised at any stage of the proceedings. 5.In Pacific Frontier Seas Ltd v Kyengo & another Civil Appeal 32 of 2018, the court held that even where the court has jurisdiction, it should not base its decision on unpleaded issues because the issues determined by the court must flow from the pleadings. 6.The learned magistrate erred in failing to apply the principles of law in addressing the issues before the court in relation to the application of section 89 of the Act. Time limitation is statutory and cannot be changed for expediency. Without jurisdiction, the court should stop, and the suit before the trial court should be dismissed as the court lacks the requisite jurisdiction to hear or determine the matter.There are no written submissions by the respondent. Determination 7.This being a first appeal, the court is allowed to re-assess the record, review the findings and make its conclusions. 8.The ruling subject of the appeal and delivered on 28 October 2024 arose from the Notice of Preliminary Objection dated 21 June 2024 on the basis that the suit filed by the respondent was time-barred contrary to section 90 of the Act. The appellant's case was that the trial court lacked jurisdiction to hear and determine a time-barred suit. 9.The learned magistrate analyzed the objections and submissions and held that the cause of action arose on 5 May 2021, and hence the respondent had 3 years to file suit ending on 4 May 2024. The Court Tracking System (CTS) indicates that the suit was filed on 3 May 2024; hence, it was filed within time.The objections were dismissed. 10.Indeed, under section 89 of the Act, a claim based on the employment relationship must be addressed within 3 years, and a claim for a continuing injury within 12 months. The court has no discretion to extend time to file a suit out of time, as held in Koskey v Kenya Power & Lighting Co. Limited [2025] KEELRC 2361 (KLR) and Teachers Service Commission v Macharia [2025] KEELRC 2152 (KLR). The court emphasized the mandatory nature of section 89 of the Act:Notwithstanding the provisions of section 4(1) of the [Limitation of Actions Act](/akn/ke/act/1968/21) (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. 11.In this case, the learned magistrate found that the respondent, as the claimant, filed his claim on 3 May 2024. 12.In his claim, the respondent pleaded that the appellant employed him on contract from 1 March 2012 and that the contract was automatically renewed annually. The appellant was terminated without due process on 3 May 2021, upon reporting for work. At 3 pm, the human resources manager called him and said that, effective 4 May 2021, he should not report to work. 13.In response to the claim, the appellant filed various work records, including:a.The Certificate of Service. It indicates that the respondent was employed from 1 March 2012 to 24 April 2021.b.There is a Certificate of Clearance dated 24 April 2021.c.The Notice terminating employment dated 25 March 2021. 14.Where indeed employment terminated on 25 March 2021, as alleged by the respondent, other work records filed with the response directly contradict this notice.The appellant filed the following documents:a.Notice to show cause to the respondent dated 3 March 2021. He was to respond by 4 March 2021.b.He was invited to attend a disciplinary hearing on 12 March 2021.c.There are disd.There is the respondent’s letter of apology dated 12 April 2021. 15.The appellant replied to the letter of apology on 23 April 2021. The appellant noted as follows:… we acknowledge receipt of your letter dated 12/04/2021, whose contents are duly noted.We regret to advise that the management’s decision was taken when you failed to transform despite having been tolerated for some time.Nevertheless, your prayer has been registered, and we shall review the decision within the next 3 (three) months. 16.This response of 23 April 2021 confirms that the appellant employed the respondent. His conduct was to be reviewed within 3 months from such date. 17.The learned magistrate's finding that the employment relationship ceased with effect from 4 May 2021 is correct, based on the facts presented before the trial court. 18.The pleadings placed before the trial court should be interrogated by a call of evidence that cannot be ascertained from the objections raised. The records filed by the appellant indicate that despite the notice terminating employment dated 25 March 2021, the employment relationship did not cease. There is evidence of continued employment after such date, as evidenced by the appellant’s work records of the respondent. 19.The respondent's assertions that his employment was terminated with effect from 4 May 2021 are correct. The trial court must interrogate all the facts leading to the termination of employment, particularly the notice to show cause dated 3 March 2021:Notice to attend disciplinary hearing on 12 March 2021;Disciplinary hearing held on 15 March 2021;Letter of apology dated 12 April 2021;Reply by the appellant dated 23 April 2021; andNotice terminating employment dated 25 March 2021; andCertificate of Service dated 10 May 2021. 20.These are facts that only the trial court can address by the call of evidence. 21.Under section 89 of the Act, the respondent had 3 years to file suit concerning the employment relationship with the appellant. The 3 years hence were to lapse on 3 May 2024. 22.The findings on the appellant's objections were correct and properly dismissed. The ruling by the learned magistrate on 28 October 2024 is hereby affirmed. The appeal is dismissed with costs to the respondent. 23.The matter shall revert to the trial court for a hearing on the merits. **DELIVERED IN OPEN COURT AT MOMBASA ON THIS 29TH DAY OF JANUARY 2026.****M. MBARŨ****JUDGE**