Bakery, Confectionary, Manufacturing & Allied Workers Union (K) v Kenafric Industries Ltd [2015] KEELRC 428 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether limitation is a proper preliminary objection
A plea of limitation is a proper preliminary objection, as established in Mukisa Biscuit v West End Distributors
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.
Whether conciliation suspended the limitation period
Yes - time stopped running upon referral to conciliation and resumed upon its conclusion on 22nd November 2010
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.
Whether the suit was filed within the limitation period under Section 90 of the Employment Act
No - filed on 19th December 2014, more than three years after 22nd November 2010, and thus statute barred with no discretion to extend
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.
Legal principles established
#- 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
#- 1.The suit is dismissed with no order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.