Transport And Allied Workers Union v Everest Enterprises Limited [2014] KEELRC 702 (KLR)
The bottom line
#The Industrial Court struck out a union's redundancy claim because it sued under the wrong law and filed too late.
What this practically means
#Executive summary
#Key legal issues
#Applicability of the Employment Act 2007 to pre-2007 terminations
Inapplicable; the correct framework is the old Employment Act Cap 226 and Trade Disputes Act Cap 234 procedure
The Grievants' contracts were terminated on 3rd March 2007, before the Employment Act 2007 came into force. Section 40 of that Act therefore could not found a claim for redundancy pay. The proper route was the repealed Employment Act Cap 226 combined with the Trade Disputes Act Cap 234 procedure as read with Section 84 of the Labour Relations Act 2007. The Claimant invoked the wrong statute and wrong procedure, rendering the Claim improperly before the Court.
Limitation under Section 90 of the Employment Act 2007
Even if the 2007 Act applied, the claim filed on 27th September 2010 over a 3rd March 2007 termination would be time-barred
The Court accepted the Respondent's submission that Section 90 of the Employment Act 2007 bars claims of this nature. The terminations occurred on 3rd March 2007 while the Claim was only filed on 27th September 2010, well outside the limitation period. Accordingly, even assuming the invoked statute applied, the reliefs sought would be barred and the Court could not assist the Grievants.
Irregularity in the conduct of the dispute - multiplicity of trade unions and lack of oral evidence
The involvement of different trade unions over the same dispute was irregular, and reliance on sketchy documents without grievant testimony made the claim incurably defective
The Court noted that different trade unions, including the Kenya Union of Commercial, Food, and Allied Workers, reported the same dispute over the same employees to the Minister. This made it impossible to determine whether the records before the Court were complete. The problem was compounded because the Grievants did not testify, the Claimant relying only on sketchy documents. These defects rendered the claim incurably defective and deserving of being struck out.
Legal principles established
#- Where employment terminated before the Employment Act 2007 came into force, remedies must be sought under the repealed Employment Act Cap 226 through the Trade Disputes Act Cap 234 procedure, as read with Section 84 of the Labour Relations Act 2007
- A claim founded on the wrong statute and filed out of time under Section 90 of the Employment Act 2007 is incurably defective
Court orders
#- 1.The Claim is struck out with no order on costs
- Jurisdiction invoked
- Industrial Court (Labour Relations Act, No. 14 of 2007); dispute reported under the Trade Disputes Act Cap 234
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Transport And Allied Workers Union v Everest Enterprises Limited [2014] KEELRC 702 (KLR)", Case Analysis (2014). Cause Number 1130 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/702/eng@2014-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.