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ELRCOtherNot stated in the judgment· [2014] KEELRC 1423 (KLR)

Kenya Union Of Domestic, Hotels, Educational Institutions, Hospital And Allied Workers (Kudheiha) v Kaheti Primary School [2014] KEELRC 1423 (KLR)

Employment and Labour Relations Court
28 November 2014
528 words in judgment
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The bottom line

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A Kenyan employment claim was struck out because it was filed years too late, showing deadlines in employment disputes are strictly enforced.

What this practically means

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Executive summary

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The respondent, the Attorney General through litigation counsel F.O. Makori, filed a notice of preliminary objection on 16.10.2014 seeking the striking out of the claimant's memorandum of claim dated 25.08.2014 and filed on 2.09.2014, with costs. The objection raised three grounds: that the claim contravened the mandatory provisions of section 90 of the Employment Act, 2007, and sections 62(3) and 67(1) of the Labour Relations Act, 2007, and that the respondent would be highly prejudiced if the claim were heard before determination of the objection. The respondent submitted that the cause of action accrued on 14.03.2006 when the grievant was declared redundant; the dispute was reported to the Minister only on 17.03.2011, well outside the mandatory 90 days; the conciliator's 30-day period lapsed on 19.05.2011; and by the time the suit was filed on 2.09.2014, the three-year limitation period under section 90 had expired. The claimant argued that the case was reported earlier in March 2008, that section 67(1) allowed extension of the 30-day period by agreement, and that the amended preliminary objection was filed without leave. The court found the preliminary objection merited, noting that even if the amended notice were struck out the original notice sufficiently disclosed the issues. The preliminary objection was upheld and the memorandum of claim dismissed with costs on 28th November 2014 at Nyeri.

Key legal issues

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01

Limitation under section 90 of the Employment Act, 2007

Holding

The claim, pleaded to have accrued on 14.03.2006 and filed on 2.09.2014, was time-barred under section 90

Reasoning

The cause of action was pleaded as having accrued on 14.03.2006. After the conciliation process lapsed on 19.05.2011, the three-year limitation window under section 90 of the Employment Act had already expired by 2.09.2014 when the suit was filed, rendering the claim incompetent.

p. 2
02

Statutory reporting timelines under sections 62(3) and 67(1) of the Labour Relations Act, 2007

Holding

The claimant failed to report the dispute within 90 days as required, and the conciliator's 30-day period expired leaving the dispute unresolved

Reasoning

The dispute occurred on 14.03.2006 but was only reported to the Minister on 17.03.2011, far outside the mandatory 90 days. The conciliator's 30-day mandate lapsed on 19.05.2011, leaving the dispute unresolved, and the claim filed thereafter was irregular and incompetent.

p. 2
03

Amended preliminary objection filed without leave

Holding

The court proceeded on the original notice, holding it sufficiently disclosed the issues even if the amendment were struck out

Reasoning

The claimant objected that the amended preliminary objection was filed without leave. The court held that even if the amendment were struck out, the initial notice would adequately bring out the issues in dispute, so the objection did not defeat the preliminary objection.

p. 2

Legal principles established

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  • A claim founded on a cause of action that accrued outside the limitation period in section 90 of the Employment Act and reported outside the statutory timelines in sections 62(3) and 67(1) of the Labour Relations Act is incompetent and may be struck out on a preliminary objection

Court orders

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  1. 1.The respondent's preliminary objection is upheld as urged
  2. 2.The memorandum of claim is dismissed with costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (Employment Act, 2007; Labour Relations Act, 2007); no constitutional provision stated

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, "Kenya Union Of Domestic, Hotels, Educational Institutions, Hospital And Allied Workers (Kudheiha) v Kaheti Primary School [2014] KEELRC 1423 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1423/eng@2014-11-28

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