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ELRCDismissedNot stated in the judgment copy provided· [2013] KEELRC 887 (KLR)

Arthur Liakopa Isokoni v Board of Governors Lirhembe Girls Sec. School [2013] KEELRC 887 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
12 November 2013
HWHellen Wasilwa
1,050 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A teacher's aide who waited seven years to sue over his 2006 dismissal lost his case entirely because he never followed the mandatory labour dispute process in place at the time.

What this practically means

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Executive summary

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The claimant, Arthur Liakopa Isokoni, sued through KUDHEIHA union representation, alleging he was employed as a groundsman from 1 January 2001, received a warning letter in November 2003, and was dismissed on 2 August 2006 without being given a chance to defend himself. He claimed his dismissal was unlawful and wrongful and that he was not paid terminal dues, leave or salary in lieu of notice, alleging the respondents had by an agreement dated 21 October 2010 agreed to compensate him Kshs 98,568 but reneged. The respondents countered that the termination was proper, that the claimant was invited to disciplinary meetings but refused to attend or explain himself, denied the compensation agreement, and argued the claim was statute-barred, having been filed about seven years after the cause of action without extension of time. The court framed three issues: limitation, the fairness of the termination procedure, and entitlement to remedies. On limitation, the court held that at the time of dismissal the Trade Disputes Act Cap 234 (repealed) governed, and under section 14 the court could not take cognizance of a dismissal dispute that had not been reported to and pursued through the Minister for Labour; the claimant never did so. Although section 90 of the Employment Act 2007 was found inapplicable retrospectively, the claimant's seven-year delay without leave of court and without the mandatory conciliation process led the court to decline cognizance of the dispute. The court found the suit statute-barred and dismissed it without considering the merits, ordering each party to bear its own costs.

Key legal issues

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01

Whether the claim was statute-barred

Holding

The claim was statute-barred: the claimant never pursued the mandatory conciliation process through the Minister for Labour under section 14 of the Trade Disputes Act Cap 234, and took seven years to file suit without leave of court.

Reasoning

At the date of dismissal in 2006 the operative law was the Trade Disputes Act Cap 234, under which section 14 barred the court from taking cognizance of a dispute not reported to the Minister, or concerning dismissal, without the Minister's written authority. The claimant did not report the dispute through the Minister. Although section 90 of the Employment Act 2007 was found not to apply retrospectively, the claimant's seven-year delay without leave and without the statutory conciliation route led the court to decline cognizance of the dispute.

p. 3
02

Whether section 90 of the Employment Act 2007 applies to a pre-2007 cause of action

Holding

Section 90 of the Employment Act 2007 does not apply where the cause of action arose before the Act came into force, as the Act does not operate retrospectively.

Reasoning

The respondents relied on section 90 of the Employment Act 2007 and section 4(1) of the Limitation of Actions Act to argue that the claim, filed in 2013 over a dismissal effective 2006, was out of time. The court held that section 90 could not be applied to a 2006 dismissal because the Employment Act 2007 was not in force when the cause of action arose and statutes are not applied retrospectively. The claim nevertheless failed on the Trade Disputes Act route.

p. 2

Legal principles established

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  • Where the cause of action arose before the Employment Act 2007 came into force, section 90 of that Act does not apply retrospectively.
  • Under section 14 of the Trade Disputes Act Cap 234 (repealed), a court could not take cognizance of a dismissal dispute unless it had been reported to the Minister and the mandatory conciliation process through the Minister for Labour had been pursued.

Court orders

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  1. 1.The claimant's case is dismissed as statute-barred without consideration of the merits of the dismissal.
  2. 2.Each party shall bear its own costs.

Authorities

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Legislation

  • Trade Disputes Act Cap 234 Laws of Kenya (now repealed)Section 14(a)(b) and Section 14(a)(f)
  • Limitation of Actions ActSection 4(1)
  • Employment Act 2007Section 90
Jurisdiction invoked
Jurisdiction over trade disputes as then constituted under the Trade Disputes Act Cap 234 (repealed) and the Employment Act 2007; no constitutional or statutory article expressly invoked in the judgment

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, "Arthur Liakopa Isokoni v Board of Governors Lirhembe Girls Sec. School [2013] KEELRC 887 (KLR)", Case Analysis (2013). Not stated in the judgment copy provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/887/eng@2013-11-12

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