Employees lose case over one-day delay in filing deadline

In a dramatic twist that underscores the precision of legal timelines, six former employees have seen their claims for terminal dues and compensation dismissed over what appears to be a trivial technicality: missing the statutory filing deadline by a single day.

 The case, heard in the Court of Appeal at Nairobi, highlights how the law can be unforgiving even when disputes involve long-standing employment grievances.

The appeal involved six appellants—Everline Nyakerario, Florence Ndoti Kamuya, Patricia Mulei Richard, Sophie Mukulu Muthiani, Elizabeth Wambura Njiru, and Hellen Makojo Kupara—against Professional Clean Care Limited, their former employer.

The appellants had filed separate claims in the Employment and Labour Relations Court, seeking compensation for unfair termination and unpaid terminal benefits.

Court documents state that their contracts had been terminated on November 30, 2014.

According to court records, the employees lodged their claims on December 1, 2017, just a day after the three-year limitation period specified under Section 90 of the Employment Act had expired.

In response, the company filed a notice of preliminary objection, arguing that the suits were statute-barred and therefore incompetent.

“And that, as drawn, the suit was incompetent, fatally defective, and unsustainable in law,” the judgment reads.

At the Employment and Labour Relations Court, Justice Onesmus Makau ruled in favor of the former employer, holding that the suits were filed out of time by one day.

The judge referred to Section 2 of the Interpretation and General Provisions Act, which defines a year as 365 days, and concluded that the three-year limitation period started on 1st December 2014 and ended on 30th November 2017.

Consequently, the preliminary objection was upheld, and the consolidated suits were struck out with costs.

“Dissatisfied with the ruling, the appellants filed the appeal in which they contend that the Learned Judge erred in law and in fact,” it further states.

Among the main points raised, the appellants contended that a year should be reckoned according to the British calendar, which includes a leap year, giving 2016 an extra day.

This, they argued, meant that the three-year limitation period had 1,096 days, making December 1, 2017 the final day to file their claims, not November 30, 2017.

The appellants relied on previous court decisions to support their argument on the computation of time.

They further argued that because the commencement and lapsing of the limitation period were contested, the preliminary objection should have been dismissed under the test set out in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, which holds that preliminary objections should not succeed where the facts are in dispute.

In response, the company argued that the claims were indeed filed a day late.

According to their submission, the three-year limitation period ran from 1st December 2014 to 30th November 2017, totalling 1,095 days.

They maintained that, under Section 3 of the Interpretation and General Provisions Act, a year means a 365-day calendar year.

Even accounting for the leap year, the respondent argued, the limitation period’s final day remained 30th November 2017. They urged the appellate court to uphold the trial court’s decision, emphasising that the preliminary objection had been properly raised and merited.

“A year means a 365-day calendar in use in Kenya. Accordingly, the suits were barred by one day,” the company stated.

The Court of Appeal, composed of Justices Daniel Musinga, Kathurima M’Inoti, and George Odunga, carefully examined the submissions and the law.

The court first addressed whether the preliminary objection was properly taken.

Drawing previous court findings, the judges noted that a preliminary objection must raise a pure point of law that may dispose of the suit, based on the assumption that all pleaded facts are correct.

They clarified that disagreement over the application of law to undisputed facts does not constitute a factual dispute that would bar the objection.

In this case, the cause of action arose on 30th November 2014, a fact that was not in dispute.

On the computation of the limitation period, the Court of Appeal acknowledged that 2016 was a leap year, giving that year an extra day in February.

However, the judges ruled that this did not extend the limitation period.

By the standard calculation, the first year ran from 1st December 2014 to 30th November 2015 (365 days), the second year from 1st December 2015 to 30th November 2016 (366 days, accounting for the leap day), and the third year from 1st December 2016 to 30th November 2017 (365 days).

The court emphasised that the leap year did not shift the last day to 1st December 2017.

“It is clear that the last day for filing the suit was November 30 2017, and it matters not whether the year 2016 was a leap year,” the bench noted.

The appellate court concluded that the trial court had correctly found the suit statute-barred.

“It only means that the appellants had the benefit of an extra day whose benefit they did not make use of,” the judgment stated.

In essence, the extra day in the leap year did not allow the appellants to file late and still fall within the statutory limitation.

Ultimately, the Court of Appeal dismissed the appeal, upholding the ruling of the Employment and Labour Relations Court.

However, the judges made no order as to costs, recognising the employment context and the genuine dispute between the parties.

The case stands as a stark reminder of the unforgiving nature of statutory deadlines and the precision required in legal practice.