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Court of AppealPartially AllowedCivil Appeal No. 261 of 2016· [2019] KECA 556 (KLR)

Kilimanjaro Company Limited v Kenya Union of Commercial Food and Allied Workers [2019] KECA 556 (KLR)

Court of Appeal
5 July 2019
2,902 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Kenya Union of Commercial Food and Allied Workers sued Kilimanjaro Company Limited on behalf of two grievants summarily dismissed in June 2004, seeking reinstatement or, alternatively, terminal benefits and 12 months' salary as compensation. After an ex parte award was set aside and a defence filed, the Industrial Court (Maureen Onyango, J) on 19 August 2015 found the dismissals unfair and awarded each grievant 12 months' gross salary. Kilimanjaro appealed on locus standi, limitation, and damages. The respondent, in submissions only, raised a jurisdictional challenge to the appeal. The Court of Appeal (Ouko, P, Karanja and Gatembu, JJ A) held that a jurisdictional issue may be raised at any stage but discounted the amorphous point raised in submissions. The dispositive issue was limitation: applying its own precedents in G4S Security Services and Rift Valley Railways, the Court held that time does not stop running on commencement of reconciliation or other out-of-court alternative dispute resolution mechanisms. The trial judge's finding that a dispute reported to the Minister under the Trade Disputes Act escaped the Limitation of Actions Act was erroneous. The claim, filed on 21 January 2011, more than six years after the cause of action arose in June 2004, was time barred under both the Employment Act, 2007 and the Limitation of Actions Act, rendering the entire trial proceedings a nullity. The Court allowed the appeal, declined to determine the remaining grounds, and ordered each party to bear its own costs, deeming it unconscionable to burden the grievants, who had lost their jobs over 15 years earlier, with costs in favour of their former employer.

Key legal issues

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01

Effect of out-of-court dispute resolution on statutory limitation periods

Holding

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

Reasoning

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.

p. 3
02

When a jurisdictional challenge may be raised

Holding

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

Reasoning

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.

p. 3
03

Whether other grounds of appeal (locus standi, damages) needed determination

Holding

Having found the claim time barred, the Court declined to determine the remaining grounds of appeal on locus standi and assessment of damages

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Trade Unions Act
  • Trade Disputes Act, Cap 234Section 4
  • Trade Disputes Act, Cap 234Section 16
  • Employment Act, 2007Section 90
  • Employment Act (1976)
  • Limitation of Actions Act
  • Evidence ActSection 112
  • Employment and Industrial Relations ActSection 15

Cases cited (8)

  • Kenya Shipping Clearing and Warehouses Workers Union v Bobmil Industries Ltd
    2013 eKLR
  • Kenya National Private Security Workers Security Limited
    (2013) eKLR
  • Transport and Allied Workers Union v DHL Global Forwarding (K) Limited
  • National Union of Water and Sewerage Employees & 3 others v Nairobi Water & Sewerage Company Limited
    (2018) eKLR
  • Owners of Motor Vessel 'Lillian' v Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye and another
    [2016] eKLR
  • Times Newspapers Ltd v O'Regan
    [1977] I.R.L.R 101
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.