Banking Insurance and Finance Union (K) V Bank of India [2013] KEELRC 114 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Limitation in employment actions founded on contract
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
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.
Whether lodging the dispute with the Minister of Labour amounted to commencement of the suit
Yes - under the repealed Trade Disputes Act, reporting a dismissal dispute to the Minister within the mandatory conciliation procedure constituted commencement, so this suit, lodged on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
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.
Nature of limitation as a jurisdictional bar
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
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.
Legal principles established
#- Under the repealed Trade Disputes Act Cap 234, dismissal cases commenced upon lodgement of the dispute with the Minister of Labour, which was a mandatory procedure before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
#- 1.The preliminary objection is not upheld
- 2.The matter is to proceed to hearing on the merits
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.