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ELRCDismissedNot stated in judgment (Industrial Cause, Nairobi)· [2015] KEELRC 428 (KLR)

Bakery, Confectionary, Manufacturing & Allied Workers Union (K) v Kenafric Industries Ltd [2015] KEELRC 428 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
3 August 2015
1,142 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a delayed unfair dismissal claim, ruling that conciliation pauses the three-year filing clock but the employee still filed too late.

What this practically means

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Executive summary

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The Respondent/Objector filed a preliminary objection seeking striking out of the Claimant's suit on the ground that it was filed out of time contrary to Section 90 of the Employment Act. The Claimant was dismissed on 6th December 2008, but contended the dispute was referred to the Minister for Labour on 17th June 2010, a conciliator was appointed, and findings were made on 22nd November 2010, arguing that conciliation suspended the running of time. The Respondent relied on Mukisa Biscuits to show limitation is a proper preliminary objection, and on authorities establishing that limitation is not a technicality curable by constitutional invocation. The court agreed the objection was a pure point of law in the Mukisa Biscuits sense. It accepted the Claimant's submission, supported by decisions of Ongaya J. and Abuodha J., that reference of a dispute to the statutory conciliation mechanism suspends time, so limitation ran from 22nd November 2010 when conciliation concluded. However, the suit was filed on 19th December 2014, more than three years later. Applying Section 90 of the Employment Act and the Court of Appeal's decision in Divecon v Samani, the court held there is no discretion to extend time in actions founded on contract, including contracts of service. The suit was therefore dismissed as statute barred, but with no order as to costs.

Key legal issues

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01

Whether limitation is a proper preliminary objection

Holding

A plea of limitation is a proper preliminary objection, as established in Mukisa Biscuit v West End Distributors

Reasoning

The court adopted Law JA's classic formulation that a preliminary objection is a point of law which, if argued as a preliminary point, may dispose of the suit, with a plea of limitation expressly given as an example. Sir Charles Newbold's formulation that such an objection raises a pure point of law on assumed facts was also endorsed. The objection here went purely to Section 90 of the Employment Act without needing ascertainment of disputed facts.

p. 2
02

Whether conciliation suspended the limitation period

Holding

Yes - time stopped running upon referral to conciliation and resumed upon its conclusion on 22nd November 2010

Reasoning

The Claimant showed the dispute was referred to the Minister for Labour on 17th June 2010 and a conciliator appointed, with findings made on 22nd November 2010. The court accepted the Claimant's authorities that reference to conciliation suspends time. It therefore computed limitation from 22nd November 2010 rather than the 2008 dismissal.

p. 2
03

Whether the suit was filed within the limitation period under Section 90 of the Employment Act

Holding

No - filed on 19th December 2014, more than three years after 22nd November 2010, and thus statute barred with no discretion to extend

Reasoning

Section 90 requires suits arising from the Employment Act or a contract of service to be commenced within three years of the act complained of. Time began running on 22nd November 2010 upon conclusion of conciliation. Filing on 19th December 2014 exceeded that period. Following Divecon v Samani, there is no judicial discretion to extend time in contract-based actions.

p. 2

Legal principles established

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  • Where a matter is referred to the statutory dispute resolution mechanism, time for purposes of limitation ceases to run and is suspended until the conciliation process ends
  • There is no discretion to extend time for actions founded on contract, including contracts of service

Court orders

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  1. 1.The suit is dismissed with no order as to costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions Act (Chapter 22)Section 4(1) and Part III

Cases cited (9)

  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd
    [1969] E.A. 696
  • Tailors & Textile Workers Union v Moi University and Rivatex EA Ltd Cause No. 1981 of 2011 consolidated with Cause 1996 of 2011
  • Peter Musembi v Barclays Bank of Kenya Limited Cause 1686 of 2011
  • Maria Machocho v Total Kenya Limited
    [2013] eKLR
  • Divecon v Samani
    (1995-1998) EA 48
  • Kenya Petroleum Workers Union v Kenya Pipeline Company Limited
    [2014] eKLR
  • Kenya Plantation Workers Union v Mununga Leaf Base
    [2013] eKLR
  • Gatune v The Headmaster Nairobi Technical High School & Another
    [1998] eKLR
  • Joseph Kamau & 488 others v G4S Security
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; Section 90 of the Employment Act; Limitation of Actions Act section 4(1)

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, "Bakery, Confectionary, Manufacturing & Allied Workers Union (K) v Kenafric Industries Ltd [2015] KEELRC 428 (KLR)", Case Analysis (2015). Not stated in judgment (Industrial Cause, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/428/eng@2015-08-03

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