New Kenya Co-operative Creameries Limited v Peter Manthi Mwau [2017] KECA 523 (KLR)
The bottom line
#Kenya's Court of Appeal threw out an employee's claim because he waited too long to sue, proving employment claims face strict three-year deadlines.
What this practically means
#Executive summary
#Key legal issues
#Date of accrual of the cause of action and applicable statute
The cause of action arose on 24th March 2006 upon dismissal, before the Employment Act 2007 came into force; the repealed Employment Act and Trade Disputes Act governed
The court held that, on the material before it, the only logical conclusion was that the cause of action arose on 24th March 2006 when the respondent was arrested and charged. The claim therefore crystallised before the Employment Act 2007 came into force, and the claim should have been brought under the repealed statutes via their saving provisions, not under the new Act.
Limitation under Section 90 of the Employment Act 2007
A claimant whose claim accrued before the 2007 Act but who filed suit in 2010 was caught by Section 90's three-year limitation, rendering the claim time barred and the court without jurisdiction
Section 90 expressly removed employment contracts from the Limitation of Actions Act. Because the respondent did not move the court until 2010, two years after the 2007 Act came into force, he was caught by its three-year limitation measured from 24th March 2006. The trial Judge erred in holding the provision not retrospective.
Jurisdiction of the Industrial Court
The Industrial Court lacked jurisdiction to entertain a claim governed by the repealed Trade Disputes Act procedure, contrary to Section 4(4) of that Act
Relying on Owners of the Motor Vessel 'Lillian S', the court affirmed that jurisdiction must be addressed immediately once raised. Even if the respondent had six years under the repealed Employment Act, the repealed Trade Disputes Act's procedure under Section 4(4) applied, so the claim was fatally defective and incompetent either way.
Legal principles established
#- Where a cause of action crystallised before the Employment Act 2007 came into force, the applicable law is the repealed Employment Act and repealed Trade Disputes Act; a claimant who files after the new Act is nonetheless caught by Section 90's limitation period
- Section 90 of the Employment Act 2007 ousted the application of Section 4(1) of the Limitation of Actions Act to employment contracts
- A question of jurisdiction must be raised and decided at the earliest opportunity, and a court without jurisdiction must stop proceedings
Court orders
#- 1.The appeal is allowed
- 2.Each party bears its own costs of the appeal
- On appeal from
- Industrial Court of Kenya at Nairobi (now Employment and Labour Relations Court)
- Industrial Court Cause No. 1267 of 2010
- Jurisdiction invoked
- Appeal from the Industrial Court under the applicable appeal provisions of the employment legislation (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "New Kenya Co-operative Creameries Limited v Peter Manthi Mwau [2017] KECA 523 (KLR)", Case Analysis (2017). Civil Appeal No. 21 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/523/eng@2017-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.