Kilimanjaro Company Limited v Kenya Union of Commercial Food and Allied Workers [2019] KECA 556 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that labour disputes sent to the Labour Minister do not pause the three-year deadline to sue, killing a late unfair dismissal claim.
What this practically means
#Executive summary
#Key legal issues
#Effect of out-of-court dispute resolution on statutory limitation periods
Referral of a dispute to the Minister for Labour or other alternative dispute resolution mechanisms does not stop time from running; a claim filed beyond the limitation period under section 90 of the Employment Act or the Limitation of Actions Act is time barred
The Court relied on its prior decisions in G4S Security Services and Rift Valley Railways, which held that alternative dispute resolution must be court-based to halt time, and that out-of-court negotiations do not suspend limitation. The trial judge's finding that a dispute reported to the Minister was deemed commenced and escaped limitation was held to be erroneous in law. The claim, filed in January 2011 over six years after the June 2004 termination, was time barred and the proceedings a nullity.
When a jurisdictional challenge may be raised
A challenge on jurisdiction can be raised at any point in the proceedings, but the point raised by the respondent in submissions only, and not in the Notice of Grounds for affirming the decision, was dismissed as amorphous
The Court reiterated the well-established principle from Owners of the Motor Vessel 'Lillian' s v Caltex Oil that jurisdiction is everything and a legal issue of jurisdiction may be taken at any stage. However, the respondent's jurisdictional point was raised for the first time in written submissions, was not in the Notice of Grounds for affirming the decision, and was not addressed in oral argument, so the Court did not allow it to derail the appeal.
Whether other grounds of appeal (locus standi, damages) needed determination
Having found the claim time barred, the Court declined to determine the remaining grounds of appeal on locus standi and assessment of damages
The Court treated the limitation issue as jurisdictional and dispositive. Since the entire proceedings before the trial court were a nullity, there was no need to address whether the union had locus standi to sue on behalf of non-members, or whether the compensation of 12 months' salary was justified. Those issues therefore remained undetermined and form no part of the ratio of this judgment.
Legal principles established
#- Time does not stop running on the commencement of reconciliation or other alternative dispute resolution mechanisms; a claim not filed within the statutory limitation period is time barred
- An issue of jurisdiction may be raised at any stage of the proceedings and must be disposed of whenever raised
- A claim filed outside the statutory limitation period is a nullity before the court
Court orders
#- 1.Appeal allowed
- 2.Each party to bear its own costs
- On appeal from
- Industrial Court of Kenya at Nairobi
- Industrial Court Cause No. 938 of 2010
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Industrial Court (now Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sikengei v Wandiema[2023] KEELC 19269 (KLR)28 Jul 2023
- Enock Angoya Ombeva v Kenya Medical Training College [2020] KEELRC 275 (KLR)[2020] KEELRC 275 (KLR)15 Oct 2020
Cite this brief
#Cite this brief
Caselaw, "Kilimanjaro Company Limited v Kenya Union of Commercial Food and Allied Workers [2019] KECA 556 (KLR)", Case Analysis (2019). Civil Appeal No. 261 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/556/eng@2019-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.