Kenya Airways Limited v Transport & Allied Workers Union [2019] KECA 841 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a union claim filed 11 years late, confirming the six-year limit for contract suits is absolute and conciliation doesn't pause it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Industrial Court had a discretion to condone a claim filed outside the limitation period for contract
The Judge erred in treating limitation as discretionary; an action founded on contract must be brought within six years and no court may entertain or extend an action filed outside that period.
Section 4(1) of the Limitation of Actions Act bars actions founded on contract after six years from accrual. Omoke's cause of action accrued on dismissal in February 1999; suit was filed in December 2010, about five years after limitation expired. Part III of the Act, which allows extension, does not apply to contract claims. Accordingly, the statutory bar is absolute and the judge's premise that he could excuse the delay was erroneous.
Whether pending conciliation or settlement processes suspend the running of limitation
Limitation continues to run notwithstanding recourse to conciliation or other alternative dispute resolution or settlement processes.
The respondent argued that the dispute had passed through grievance procedures, Ministry of Labour investigation and conciliation, so limitation should not run until those processes were exhausted. The Court rejected this, relying on G4S Security Services, and held that the trade dispute procedure does not suspend the statutory limitation period for a contract claim.
Legal principles established
#- Where a statute prescribes a limitation period for actions in contract, courts have no discretion to waive or extend it unless the statute itself provides for extension.
- Limitation does not stop running on account of pending conciliation or other settlement or alternative dispute resolution processes.
- Whether a claim is time-barred is not a matter of judicial discretion dependent on the facts of each case.
Court orders
#- 1.The ruling of the Industrial Court given on 15th June 2011 is set aside
- 2.An order substituted upholding the appellant's preliminary objection dated 21st December 2010
- 3.The respondent's claim filed on 15th December 2010 is struck out
- 4.The appellant shall have costs of the appeal and costs of the Industrial Court
- On appeal from
- Industrial Court of Kenya at Nairobi
- Industrial Court Cause No. 1559 of 2010
- Jurisdiction invoked
- First appellate jurisdiction over the Industrial Court under the applicable labour dispute legislation
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.
- Kimani v Board of Management General Mulinge High School (Employment and Labour Relations Cause E039 of 2021) [2024] KEMC 40 (KLR)[2024] KEMC 40 (KLR)3 Sept 2024followed
- Kenya Engineering Workers Union v Kenya General Industries Limited (Cause E075 of 2022) [2023] KEELRC 1238 (KLR)[2023] KEELRC 1238 (KLR)25 May 2023
Cite this brief
#Cite this brief
Caselaw, "Kenya Airways Limited v Transport & Allied Workers Union [2019] KECA 841 (KLR)", Case Analysis (2019). Civil Appeal No. 204 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/841/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.