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ELRCPartially AllowedCause No 10 of 2015· [2015] KEELRC 348 (KLR)

Kenya Hotels and Allied Workers Union v Sportsman Arms Hotel Nanyuki [2015] KEELRC 348 (KLR)

Employment and Labour Relations Court
23 October 2015
BOByram Ongaya
1,236 words in judgment
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The bottom line

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A Kenyan employment court doubled a worker's award after ruling that time limits for suing only start counting once conciliation officially fails.

What this practically means

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Executive summary

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This is a ruling on the claimant's application for review of a judgment delivered by Byram Ongaya, J on 31.07.2015, which had awarded Kshs.43,050 and declared the grievant's termination unfair, while holding that claims for underpayments and house allowance were time barred under section 90 of the Employment Act, 2007. The claimant sought review on three grounds: an error of record on limitation; failure to find that the conciliation process under the Labour Relations Act, 2007 had been exhausted; and the court's suo motu invocation of section 90 without pleading by the respondent. The respondent filed no reply and did not appear. The court found an error on the face of the judgment: exhibit JOO8, a certificate of conciliation issued on 12.03.2014 under section 69(a) of the Labour Relations Act, showed the dispute had undergone conciliation, and the suit filed on 28.01.2015 was a prompt referral under section 73(1). Limitation therefore ran from the date of the certificate, and the claims were not time barred. The court upheld its earlier opinion in Kenya Plantation Agricultural Workers Union v Kisima Farm Limited [2015]eKLR on limitation for referred disputes. On the merits, the overtime claim failed for want of evidence of specified dates; the house allowance claim failed for lack of particularisation; but the particularised underpayment claim succeeded at Kshs.115,613.10. The award of Kshs.43,050 for breach of the section 40 redundancy procedure was upheld. The court set aside the final orders of the original judgment and substituted judgment for the claimant for Kshs.158,663.10 payable by 1.12.2015, plus the declaration of unfair termination, with each party bearing its own costs of the application.

Key legal issues

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01

Limitation of claims referred after conciliation under the Labour Relations Act

Holding

The suit was a referral under section 73(1) of the Labour Relations Act, 2007; time under section 90 of the Employment Act ran from the date of the certificate of unresolved dispute (12.03.2014), so the suit filed on 28.01.2015 was within 12 months and the claims were not time barred

Reasoning

The court revisited the record and found the certificate of conciliation (exhibit JOO8) issued on 12.03.2014 under section 69(a) of the Labour Relations Act. Since the cause of action accrued on the date of the certificate of unresolved dispute, and the referral was made promptly, the invocation of section 90 of the Employment Act to bar the claims was an error on the face of the judgment warranting review.

p. 2
02

Entitlement to underpayment damages

Holding

The claim for underpayment, being particularised and based on minimum wage orders on record, succeeded; the claimant was awarded Kshs.115,613.10

Reasoning

The claims for house allowance and underpayments were based on minimum wage orders filed in court. While the house allowance claim failed for want of particularisation and evidence, the salary/underpayment claim was particularised and, absent contrary material, the claimant was entitled as prayed.

p. 2
03

Redundancy procedure

Holding

The award of Kshs.43,050 for the respondent's failure to follow the redundancy procedure under section 40 of the Employment Act, 2007 was upheld

Reasoning

The court reviewed its earlier judgment and found no basis to disturb the award of Kshs.43,050 made for the respondent's failure to follow the redundancy procedure prescribed by section 40 of the Employment Act, 2007, and accordingly upheld that portion of the judgment.

p. 2

Legal principles established

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  • Where a trade dispute is unresolved after conciliation and referred under section 73 of the Labour Relations Act, limitation runs from the date the dispute stands unresolved, applying the time limits in section 90 of the Employment Act

Court orders

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  1. 1.The judgment of 31.07.2015 is reviewed and its final orders set aside
  2. 2.The respondent to pay the grievant Peter Kagwima Wanjahi Kshs.158,663.10 by 1.12.2015, failing which interest at court rates from the date of judgment until full payment
  3. 3.A declaration that the termination of the grievant's employment by the respondent was unfair
  4. 4.Each party to bear own costs of the application for review

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 40
  • Labour Relations Actsection 69(a)
  • Labour Relations Actsection 73(1)
  • Labour Relations Actsection 73(3)

Cases cited (1)

  • Kenya Plantation Agricultural Workers Union –Versus- Kisima Farm Limited
    [2015]eKLR
Jurisdiction invoked
Referral of an unresolved trade dispute under section 73(1) of the Labour Relations Act, 2007

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 Hotels and Allied Workers Union v Sportsman Arms Hotel Nanyuki [2015] KEELRC 348 (KLR)", Case Analysis (2015). Cause No 10 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/348/eng@2015-10-23

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