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ELRCOtherIndustrial Court Cause (consolidated with Cause Nos. 857, 858 and 859 of 2010) - number not stated in judgment· [2013] KEELRC 378 (KLR)

RICHARD NYASOKO KIYONDI & 2 OTHERS V BRITISH AMERICAN TOBACCO (KENYA) LIMITED [2013] KEELRC 378 (KLR)

Industrial Court of Kenya
3 May 2013
MNMathews N. Nduma
1,179 words in judgment
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The bottom line

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A Kenyan employment court ruled that claims about events before the 2007 Employment Act get six years to be filed, not three, and technical paperwork gaps shouldn't kill a case.

What this practically means

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Executive summary

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Seventy claimants, led by three named claimants and described as long-serving 'casual employees', sued for accumulated terminal benefits of Kshs.23,824,650.00 arising from their alleged lock-out without notice on 26th February 2006. The Respondent raised four preliminary objections: that the suit was time-barred under Section 90 of the Employment Act, 2007; that it was incompetent for non-disclosure of the 67 unnamed claimants; that it lacked their authority; and that it violated Section 68 of the Labour Relations Act, 2007 because the dispute had been settled in a signed conciliation agreement dated 25th August 2006 between the Respondent and the claimants' union. The court held that the cause of action arose when the repealed Employment Act Cap.226 applied, which contained no limitation period, so the six-year contractual limitation under Section 4(1) of the Limitation of Actions Act governed and the suit, filed about five years later, was not statutory barred; it declined to apply Section 90 retroactively, differing from Gerald Muli Kiilu v Barclays Bank of Kenya. On identification and authority, the court invoked Section 20(1) of the Industrial Court Act, which requires it to act without undue regard to technicalities, and held that inconsistencies in the list and letter of authority were not fatal, the claimants to identify themselves at hearing. Whether the conciliation agreement bound the claimants in full and final settlement was held to be a question of fact unfit for preliminary determination. All objections were dismissed and the suit was directed to proceed to a hearing on the merits.

Key legal issues

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01

Limitation - applicability of Section 90 Employment Act, 2007 to a pre-2007 cause of action

Holding

The preliminary objection on limitation fails; the suit filed on 28th October 2011 was within six years of the 26th February 2006 lock-out, so it is not statutory barred.

Reasoning

The termination occurred in February 2006 when the applicable law was the repealed Employment Act Cap.226, which had no limitation period for labour disputes. The applicable provision was Section 4(1) of the Limitation of Actions Act allowing six years for contract claims. Filing on 28th October 2011, about five years later, was within time. The court declined to apply Section 90 of the 2007 Act retroactively and differed from Gerald Muli Kiilu v Barclays Bank.

p. 2
02

Competency of suit brought by three named claimants for 67 others

Holding

Objection dismissed; the list in Appendix 3 and the written authority suffice, and any deficiency is not fatal.

Reasoning

Paragraph 3 of the pleadings refers to Appendix 3, a list of workers claiming terminal benefits, and a written authority dated 25th October 2011 authorises Richard Nyasoki Kiyondi to sign the verifying affidavit. The 67 claimants will identify themselves at hearing; the Respondent could have sought particulars but did not. Section 20(1) of the Industrial Court Act directs the court to act without undue regard to technicalities.

p. 3
03

Effect of conciliation agreement under Section 68 of the Labour Relations Act

Holding

Objection dismissed; whether the agreement was a full and final settlement binding the claimants is a factual question for the hearing.

Reasoning

A conciliation agreement dated 25th August 2006 between the Respondent and the Kenya Union of Commercial, Food and Allied Workers provided ex-gratia payments of two weeks' wages and accrued leave to the 107 former employees. Whether it was signed on behalf of the 70 claimants in full and final settlement cannot be resolved on the pleadings at a preliminary stage.

p. 3

Legal principles established

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  • Where the cause of action predates the Employment Act, 2007, the applicable limitation period is the six-year period for contract claims under Section 4(1) of the Limitation of Actions Act, Cap.22, not the three-year period in Section 90 of the Employment Act, 2007.
  • Under Section 20(1) of the Industrial Court Act, defects in the identification or authority of group claimants are not, by themselves, fatal to a suit.
  • Whether a conciliation agreement binds claimants in full and final settlement is a question of fact that cannot be resolved at a preliminary stage.

Court orders

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  1. 1.Preliminary objection on limitation dismissed
  2. 2.Preliminary objection on non-disclosure and authority of the 67 claimants dismissed
  3. 3.Preliminary objection under Section 68 of the Labour Relations Act dismissed
  4. 4.The suit to proceed on its merits and be allocated a hearing date

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act Cap.226 (repealed)not specified
  • Limitation of Actions Act, Cap.22Section 4(1)
  • Labour Relations Act, 2007Section 68
  • Industrial Court ActSection 20(1)

Cases cited (1)

  • Gerald Muli Kiilu Vs Barclays Bank of Kenya
    Industrial Court of Kenya Cause No.124 of 2010
Jurisdiction invoked
Industrial Court Act, 2007 (including Section 20(1)); Employment and Labour Relations dispute under the Memorandum of Claim

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "RICHARD NYASOKO KIYONDI & 2 OTHERS V BRITISH AMERICAN TOBACCO (KENYA) LIMITED [2013] KEELRC 378 (KLR)", Case Analysis (2013). Industrial Court Cause (consolidated with Cause Nos. 857, 858 and 859 of 2010) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/378/eng@2013-05-03

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