Kenya Hotels & Allied Workers Union v Southern Palm Beach Resort [2014] KEELRC 1134 (KLR)
The bottom line
#Kenya's Employment Court allowed a union to sue over a 2005 dismissal, ruling the three-year limit in the 2007 Employment Act doesn't apply to older terminations.
What this practically means
#Executive summary
#Key legal issues
#Applicability of section 90 of the Employment Act, 2007 to a pre-2007 termination
Section 90 is not retrospective and does not apply to a termination effected before the Employment Act, 2007 came into force
The Grievant was terminated on 7 November 2005, before the Employment Act, 2007 was enacted. Since section 90 has not been given retrospective effect, it cannot ground a limitation defence. The applicable statutes at the time of termination were the Trade Disputes Act (repealed) and the Limitation of Actions Act.
Limitation under the Trade Disputes Act (repealed) regime
The Trade Disputes Act was sui generis and provided no time limit for referral of an unresolved dispute to the Industrial Court, so limitation was technically not yet triggered
Under section 8 of the repealed Trade Disputes Act, a party could request the Minister to refer an unresolved dispute to the Industrial Court. Neither party did so, and the Act prescribed no timelines for the Minister's action. Until the Minister took that precipitate step, limitation was technically inapplicable, though parties should act within a reasonable time.
Whether sending the Union back to the Minister would serve substantive justice
No - it would be a procedural technicality producing a pyrrhic victory, and the Cause should be heard on the merits
Invoking Articles 20(3)(b), 48 and 50 of the Constitution, the Court held that forcing the Union to seek a Ministerial referral after the repeal of the Trade Disputes Act would defeat access to justice and substantive justice. The dispute would only find its way back to Court, so the Preliminary Objection was dismissed.
Legal principles established
#- Section 90 of the Employment Act, 2007 has not been given retrospective operation and does not apply to terminations occurring before its enactment
- The Trade Disputes Act (repealed) contained no limitation periods comparable to the Limitation of Actions Act or section 90 of the Employment Act
- Because the repealed Trade Disputes Act fixed no time limit for moving the Minister or for the Minister to refer a dispute to the Industrial Court, limitation does not technically apply until the Minister takes the required precipitate step, though parties must act within a reasonable time
- Courts should not give undue weight to procedural technicalities where doing so would defeat substantive justice, having regard to Articles 20(3)(b), 48 and 50 of the Constitution
Court orders
#- 1.The Preliminary Objection is dismissed with no order as to costs
- 2.The Cause to proceed to hearing on the merits
- Jurisdiction invoked
- Article 162 of the Constitution (Industrial Court as a superior court of record) and the Labour Relations Act, 2007
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.
- Kenya Airways Limited v Transport & Allied Workers Union [2019] KECA 841 (KLR)[2019] KECA 841 (KLR)22 Mar 2019
Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels & Allied Workers Union v Southern Palm Beach Resort [2014] KEELRC 1134 (KLR)", Case Analysis (2014). Cause arising from Memorandum of Claim filed 25 April 2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1134/eng@2014-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.