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ELRCDismissedIndustrial Cause filed by Memorandum of Claim dated 5th July, 2013· [2013] KEELRC 114 (KLR)

Banking Insurance and Finance Union (K) V Bank of India [2013] KEELRC 114 (KLR)

Industrial Court of Kenya
6 September 2013
1,702 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court allowed a 2013 dismissal claim to proceed because the union had reported the dispute to the Minister of Labour back in 2005, stopping the limitation clock.

What this practically means

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Executive summary

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The Claimant union brought a Memorandum of Claim on behalf of two Grievants, Samuel Mwangi Kanubi and Moses Nandwa Sharon, who were summarily dismissed by the Respondent on 27th April, 2005 after being arrested and charged with twelve counts of stealing and forgery in Criminal Case No. 600 of 2005. They were acquitted on 24th March, 2011 for lack of evidence and requested reinstatement in December 2011, without response. The dispute had been reported to the Minister of Labour on 26th October, 2005 under the Trade Disputes Act Cap 234; conciliation followed and a Certificate of Unresolved Dispute was issued on 6th June, 2012. The Respondent filed a notice of preliminary objection asserting the claim was statute barred under Section 4 of the Limitation of Actions Act and/or the Employment Act. The court held that at the material time employment contracts were subject to the six-year limitation in Section 4(1)(a) of the Limitation of Actions Act, and that Sections 27 and 28, allowing extension of time, apply only to negligence, nuisance or breach of duty, not contract, leaving the court no discretion. Limitation was characterised as a jurisdictional, not technical, issue. However, applying the repealed Trade Disputes Act, the court held that dismissal disputes commenced upon lodgement with the Minister of Labour, a mandatory precondition to suit. Since the Claimant lodged the dispute before repeal of that Act, the suit was held not time barred. The preliminary objection was not upheld and the matter was directed to proceed to hearing on the merits.

Key legal issues

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01

Limitation in employment actions founded on contract

Holding

The general six-year limitation under Section 4(1)(a) of the Limitation of Actions Act applied to employment contracts at the material time, and no extension is available for contract claims

Reasoning

The dismissal occurred on 27th April 2005, before the Employment Act 2007 introduced a three-year limitation under Section 90. Employment contracts were then governed by the Limitation of Actions Act. Sections 27 and 28, allowing extension, apply only to negligence, nuisance or breach of duty, not contract, so the court lacks discretion to extend time.

p. 3
02

Whether lodging the dispute with the Minister of Labour amounted to commencement of the suit

Holding

Yes - under the repealed Trade Disputes Act, reporting a dismissal dispute to the Minister within the mandatory conciliation procedure constituted commencement, so this suit, lodged on 26th October 2005, is not time barred

Reasoning

The Trade Disputes Act required dismissal disputes to be reported to the Minister and made conciliation and a Certificate of Unresolved Dispute a precondition to court access. Because the Claimant initiated that mandatory process before the Act's repeal, the suit is treated as lodged then and not statute barred. This exception applies only to cases commenced under that mandatory procedure.

p. 4
03

Nature of limitation as a jurisdictional bar

Holding

Limitation is not a mere technicality but a jurisdictional issue; once a contract claim is found out of time the court must terminate the proceedings

Reasoning

Relying on Direcon Ltd v Samai and Radido J in Maina Machocho v Total Kenya Ltd, the court held that no court may entertain a contract action brought after six years or any application to extend such time, and that a matter filed out of time must be terminated forthwith. However, the objection failed on the facts because the dispute was lodged with the Minister in time under the Trade Disputes Act regime.

p. 3

Legal principles established

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  • Under the repealed Trade Disputes Act Cap 234, dismissal cases commenced upon lodgement of the dispute with the Minister of Labour, which was a mandatory procedure before approaching the court
  • Sections 27 and 28 of the Limitation of Actions Act permitting extension of time do not apply to actions based on contract, so the court has no discretion to extend time for contract claims

Court orders

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  1. 1.The preliminary objection is not upheld
  2. 2.The matter is to proceed to hearing on the merits

Authorities

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Legislation

  • Trade Disputes ActSection 4; Section 4(4); Section 8
  • Limitation of Actions ActSection 4(1)(a); Sections 27 and 28
  • Employment Act 2007Section 90
  • Employment Act (repealed, Cap 226)general

Cases cited (4)

  • Banking Insurance and Finance Union (K) versus Standard Chartered Bank (K) Ltd
    I.C. Cause No. 10 of 2008
  • Direcon Ltd v. Samai
    [1995 – 1998] I EA 48
  • Maina Machocho vs. Total Kenya Limited
    I.C. of Kenya at Mombasa Misc. Cause No. 2 of 2012
  • Timothy M. Mukalo v. Reuben Alubale Shiramba & 3 others
    [2005] eKLR
Jurisdiction invoked
Trade Disputes Act Cap 234 (repealed) - reference of an unresolved trade dispute to the Industrial Court following a Certificate of Unresolved Dispute

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, "Banking Insurance and Finance Union (K) V Bank of India [2013] KEELRC 114 (KLR)", Case Analysis (2013). Industrial Cause filed by Memorandum of Claim dated 5th July, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/114/eng@2013-09-06

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