Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 85 of 2013· [2013] KEELRC 346 (KLR)

KUDHEIHA WORKERS V MARSH PARK HOTEL [2013] KEELRC 346 (KLR)

Industrial Court of Kenya
9 May 2013
HWHellen Wasilwa
1,301 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed that unions can sue for dismissed workers, and going through Labour Ministry conciliation stops the three-year time clock.

What this practically means

#

Executive summary

#
Marsh Park Hotel raised a preliminary objection dated 27 January 2013 against a complaint brought by a trade union on behalf of three of its members dismissed in March 2008. The respondents argued that the complaint was time barred under Section 90 of the Employment Act, 2007, which caps suits at three years from accrual; that the Union lacked locus standi under Section 87 of the Employment Act because the aggrieved parties are the employees themselves; and that the complaint disclosed no cause of action, was premature, misconceived and an abuse of process. The claimants countered that they are Union members, that the dispute was referred to the Labour Office on 7 August 2008 and a certificate of failure to resolve it was issued on 16 March 2011, whereafter the claim was filed, and that justice should be done without undue regard to technicalities under Article 159(2)(a) of the Constitution and Section 20 of the Industrial Court Act. Justice Hellen Wasilwa framed three issues: limitation, locus standi and tenability. She held that the dispute had been channelled through the statutory conciliation mechanism under the Labour Relations Act, and that Section 90's three-year cap does not lock out litigants who pursue the conciliation route. She held that trade unions have locus under Section 12(2) of the Industrial Court Act, 2011, and that the no-cause-of-action objection was premature as it would preempt the hearing. The preliminary objection was dismissed with costs to the claimants.

Key legal issues

#
01

Whether the complaint filed in 2011 over terminations in March 2008 is time barred under Section 90 of the Employment Act, 2007.

Holding

The complaint is not time barred because the dispute went through the statutory conciliation mechanism under the Labour Relations Act, and a certificate of failure to resolve the dispute was issued on 16/3/2011, after which the claim was filed.

Reasoning

The cause of action arose in March 2008 before the Employment Act commenced. The dispute was reported to the Minister, a conciliator was appointed under Section 65 of the LRA, and a certificate of unresolved dispute was issued under Section 69. Section 73(1) of the LRA then permits referral to the Industrial Court. Section 90's three-year cap does not oust this dispute-resolution route.

p. 3
02

Whether the claimant Union has locus standi to file the complaint on behalf of the terminated employees.

Holding

The Union has locus standi under Section 12(2) of the Industrial Court Act, 2011, which permits claims to be lodged by a trade union, and the claimants are members of the Union.

Reasoning

Section 12(2) of the Industrial Court Act expressly allows an application, claim or complaint to be lodged by or against, among others, a trade union. The claimants are members of the Union. The respondents' reliance on Section 87(a) of the Employment Act to argue that only the aggrieved employee may complain was therefore misplaced.

p. 3
03

Whether the complaint discloses a tenable cause of action.

Holding

The objection that there is no cause of action is premature; the court will determine the existence of a cause of action at the hearing, not as a preliminary point.

Reasoning

The remedies sought follow an alleged wrongful termination, and the Industrial Court is established under Article 162(2) of the Constitution to hear employment and labour relations disputes. Alleging absence of a cause of action at the preliminary stage would preempt the hearing and its outcome.

p. 3

Legal principles established

#
  • Section 90 of the Employment Act's three-year limitation period does not lock out litigants who pursue justice through the statutory conciliation route under the Labour Relations Act, provided the timelines under that Act are complied with.
  • A trade union has locus standi under Section 12(2) of the Industrial Court Act, 2011 to lodge a claim or complaint on behalf of its members.
  • A preliminary objection that there is no cause of action is premature where the issue can only be determined after hearing the evidence.

Court orders

#
  1. 1.The preliminary objection dated 27/1/2013 is dismissed with costs to the claimants.
  2. 2.Costs of the preliminary objection awarded to the claimants.

Authorities

#

Legislation

  • Employment ActSections 87(a), 90, 49
  • Labour Relations ActSections 62, 5(3), 65, 67, 69, 73(1)
  • Industrial Court ActSections 12(2), 15, 20
  • Constitution of Kenya, 2010Articles 159(2)(a), 162(2)
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12(2) of the Industrial Court Act, 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "KUDHEIHA WORKERS V MARSH PARK HOTEL [2013] KEELRC 346 (KLR)", Case Analysis (2013). Cause No 85 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/346/eng@2013-05-09

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