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ELRCDismissedIndustrial Court Cause (number not stated in judgment; Respondent cited as ICK proceedings of 1997 dismissal referred by Union)· [2013] KEELRC 480 (KLR)

Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base (Cause 91 of 2012) [2013] KEELRC 480 (KLR)

Industrial Court of Kenya
12 February 2013
JAJ. N. Abuodha
1,492 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that a worker's unfair dismissal claim filed 15 years after termination was still on time because mandatory conciliation paused the limitation clock.

What this practically means

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Executive summary

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The Claimant, a former employee of the Respondent, was dismissed on 20th March, 1997 over allegations of falsifying Green Leaf Tea kilogramme records. Her Union reported the dispute to the District Labour Officer, Kirinyaga, on 21st May, 1997, and later to the Minister. The Minister appointed a conciliator whose report and recommendations were issued on 3rd June, 2004. The Respondent refused to implement the recommendations, prompting the Union in 2006 to seek the Minister's assistance in having the dispute form A signed to enable the Industrial Court to arbitrate. The claim was filed through the Union on 9th July, 2012. The Respondent raised a preliminary objection that the claim was time barred, being filed more than six years after the cause of action arose, relying on Section 4(1) of the Limitation of Actions Act and Section 90 of the Employment Act, and on the G4S Security Services decision that leave should have been sought before filing suit out of time. Counsel for the Claimant contended that the dispute was processed through the statutory conciliation machinery under the repealed Trade Disputes Act, which suspended limitation. The court held that because the dispute was admitted by the Minister under the proviso to Section 4(4) of the repealed Trade Disputes Act and the conciliation process was beyond the Claimant's control, the cause of action accrued only in 2006 when the Respondent's refusal to honour the conciliator's recommendations became clear. The claim filed on 9th July, 2012 was therefore within the six-year period. The preliminary objection was dismissed with costs.

Key legal issues

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01

Accrual of cause of action where a trade dispute undergoes statutory conciliation

Holding

The cause of action accrued in 2006 when it became clear the Respondent would not honour the conciliator's recommendations, not in 1997 on termination; the claim filed on 9th July, 2012 was within the six-year limitation period.

Reasoning

The court examined the dispute-resolution framework under the repealed Trade Disputes Act. The dismissal was reported to the Minister on 21st May, 1997, beyond the 28-day period, but the Minister admitted the dispute under the proviso and appointed a conciliator whose report issued on 3rd June, 2004. Because the pace and conclusion of conciliation were beyond the Claimant's control, limitation was suspended during the process. Only the Respondent's refusal in 2006 to comply crystallised the cause of action.

p. 3
02

Ministerial discretion to admit an out-of-time trade dispute report

Holding

The Minister lawfully admitted the dispute outside the 28-day period under the proviso to Section 4(4) of the repealed Trade Disputes Act, and that exercise of discretion was not under challenge.

Reasoning

Section 4(4) of the repealed Trade Disputes Act required reporting of termination disputes within 28 days, but the proviso allowed the Minister to accept late reports where circumstances warranted. The Minister admitted this dispute late, presumably because the circumstances warranted it. The court declined to re-examine that discretion, noting it was not the subject of the preliminary objection.

p. 2

Legal principles established

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  • Once a disputant invokes the prescribed labour dispute resolution mechanism, accrual of the cause of action is suspended until the conciliation process concludes.
  • Trade disputes involve multi-tiered resolution mechanisms of which court action is often the last tier, distinguishing them from ordinary civil actions.

Court orders

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  1. 1.The preliminary objection on limitation is dismissed
  2. 2.Costs of the preliminary objection awarded to the Claimant

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)
  • Employment ActSection 90
  • Trade Disputes Act (repealed)Section 4(4)

Cases cited (3)

  • Stephen Ndungu Kariuki Vs G4S Security Services
    ICK Cause No. 1296 of 2010
  • Kenya Local Government Workers Union Vs. Kangundo Town Council
    ICK Cause Number 71 of 2009
  • Kenya Union of Journalists & Allied Workers Vs. British Broadcasting Corporation Monitoring East African Union
    ICK Cause Number 777 of 2011
Jurisdiction invoked
Original jurisdiction of the Industrial Court over trade disputes referred under the repealed Trade Disputes Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base (Cause 91 of 2012) [2013] KEELRC 480 (KLR)", Case Analysis (2013). Industrial Court Cause (number not stated in judgment; Respondent cited as ICK proceedings of 1997 dismissal referred by Union). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/480/eng@2013-02-12

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