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Court of AppealDismissedCivil Appeal 204 of 2018· [2022] KECA 666 (KLR)

Kabiri v Haco Industries Kenya Limited

Court of Appeal
8 July 2022
SKS. ole KantaiHOH. A. OmondiKLK. I. Laibuta
1,550 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The appellant, a former employee of HACO Industries Kenya Limited, appealed against a ruling of the Employment and Labour Relations Court (Maureen Onyango, J.) of 13th April 2018 striking out his claim for notice pay, severance pay and damages for unlawful termination as statute barred. His employment was summarily terminated on 27th January 2010; after unsuccessful conciliation before the District Labour Officer, he filed his claim in the Industrial Court on 7th June 2013, nearly five months beyond the three-year limitation period prescribed by section 90 of the Employment Act, 2007. Before the ELRC, the respondent's application to dismiss the claim for being time barred was allowed and the appellant's application to strike out the limitation plea was dismissed. Before the Court of Appeal (Kantai, Omondi and Laibuta, JJA), the decisive issue was whether the learned Judge erred in holding the claim time barred. The appellant argued that the limitation period did not begin to run, or was suspended, until the conciliation process concluded. The Court rejected that argument, holding that section 90 is unqualified and makes no provision for enlarging time, and reaffirmed its decision in Rift Valley Railways that time does not stop running merely because parties engage in out-of-court negotiations. The Court found nothing to fault in the ruling below, dismissed the appeal, upheld the ELRC ruling, and ordered each party to bear their own costs of the appeal. The judgment binds subordinate courts and tribunals on the non-suspension of the section 90 limitation period by conciliation.

Key legal issues

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01

Whether conciliation before the District Labour Officer suspends the limitation period under section 90 of the Employment Act, 2007

Holding

It does not; the limitation period is unqualified and a claim filed outside three years of termination is statute barred.

Reasoning

Section 90 prescribes a three-year limitation period for claims under the Employment Act or a contract of service, with the sole qualification for continuing injury or damage. The court found the provision unqualified and made no reference to circumstances enlarging time. Following Rift Valley Railways, out-of-court negotiations do not stop time from running. The claim, filed on 7th June 2013 against a termination of 27th January 2010, was almost five months out of time.

p. 3
02

Duty of a first appellate court

Holding

A first appeal is by way of retrial; the court must re-assess the evidence and reach its own conclusions.

Reasoning

Relying on Arthi Highway Developers and Selle v Associated Motor Boat Co., the court restated that on a first appeal it must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses, and is not bound by the trial judge's findings of fact.

Legal principles established

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  • The three-year limitation period in section 90 of the Employment Act, 2007 admits no exceptions (save continuing injury) and is not suspended by out-of-court conciliation or negotiation.

Court orders

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  1. 1.The appellant's appeal be and is hereby dismissed
  2. 2.The Ruling of the ELRC (Maureen Onyango, J.) delivered on 13th April 2018 in ELRC Cause No. 864 of 2013 be and is hereby upheld
  3. 3.Each party shall bear their own costs of the appeal
On appeal from
Employment and Labour Relations Court at Nairobi
Employment and Labour Relations Cause No. 864 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal from the ELRC (Employment Act framework; Court of Appeal appellate jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kabiri v Haco Industries Kenya Limited", Case Analysis (2022). Civil Appeal 204 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/666/eng@2022-07-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.