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ELRCDismissedNot stated in judgment· [2015] KEELRC 673 (KLR)

Kenya Plantation & Agricultural Workers Union v Kisima Farm Limited [2015] KEELRC 673 (KLR)

Employment and Labour Relations Court
31 July 2015
1,019 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The applicant trade union filed a notice of motion on 26.03.2015 seeking an extension of time to file a cause against the respondent for failure to pay injury compensation to its member, Isabelle Kajuju, a general worker injured on duty on 17.05.2010 when she slipped and hit the rear of a motor vehicle. The Occupational Safety and Health Office had directed the respondent to pay Kshs. 77,453.45, and the parties engaged in conciliation, with meetings including one on 22.05.2014 where the management requested the employee attend a second medical examination by its insurer. The respondent opposed the application by replying affidavit and a preliminary objection asserting the court lacked jurisdiction under section 90 of the Employment Act, 2007, the application being null ab-initio. The court first found, under section 68(1) of the Labour Relations Act, 2007, that no written and signed conciliation agreement had been filed, so the dispute was not resolved; under section 69 it was deemed unresolved on or about 21.04.2014, thirty days after the conciliator's appointment on 21.03.2014. Second, finding no limitation period prescribed in the rules under section 73 of the Labour Relations Act, the court held that limitation for referring an unresolved industrial dispute would generally be three years or twelve months, by analogy with section 90 of the Employment Act, running from the date the dispute stands unresolved; time had therefore not lapsed. The extension application was misconceived, as was the preliminary objection, since the suit was not time barred and time-bar alone would not oust jurisdiction. The application and the preliminary objection were both dismissed, with each party bearing its own costs. Judgment was delivered at Nyeri on 31st July 2015 by Byram Ongaya, Judge.

Key legal issues

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01

Whether the dispute was resolved at conciliation

Holding

The dispute was not resolved because no written and signed conciliation agreement was filed or exhibited, and the dispute was deemed unresolved 30 days after the conciliator's appointment on 21.03.2014.

Reasoning

Section 68(1) of the Labour Relations Act requires a resolved trade dispute's terms to be recorded in writing and signed by the parties and conciliator. No such agreement was filed. Under section 69, a dispute is deemed unresolved if the 30-day period from the conciliator's appointment expires without resolution or agreed extension. The conciliator was appointed on 21.03.2014, so the dispute stood unresolved on or about 21.04.2014.

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02

Whether time for referring the dispute to the court had lapsed

Holding

Time had not lapsed; since the dispute stood unresolved on or about 21.04.2014, the three-year limitation period was still running when the application was filed.

Reasoning

The court perused the rules made under section 73 of the Labour Relations Act and found no prescribed limitation period. In absence of a specific prescription it applied, by analogy, the limitation periods in section 90 of the Employment Act, 2007 (3 years or 12 months depending on the nature of the claim), running from the date the dispute stands unresolved. Since the dispute was unresolved on or about 21.04.2014, the three-year period had not expired by 31.07.2015.

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03

Whether the preliminary objection on jurisdiction was well founded

Holding

The preliminary objection was misconceived; the suit was not time barred, and time-bar would not in any event oust the court's jurisdiction.

Reasoning

The respondent argued under section 90 of the Employment Act, 2007 that the application was null ab-initio for want of jurisdiction. Having found the dispute unresolved and the limitation period still running, the suit was not time barred. Further, the court held that even if a suit were time barred, that fact would not ground a finding that the court lacked jurisdiction.

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Legal principles established

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  • Where a trade dispute is resolved in conciliation, the terms of the agreement must be recorded in writing and signed by the parties and the conciliator; absent such an agreement the dispute is not resolved.
  • In absence of a specific limitation in the court rules under section 73 of the Labour Relations Act, limitation for referring an unresolved industrial dispute to the ELRC is generally 3 years or 12 months by analogy with section 90 of the Employment Act, 2007, running from the date the dispute stands unresolved.
  • Even if a suit were time barred, that would not found a finding that the court lacks jurisdiction.

Court orders

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  1. 1.The application filed on 26.03.2015 is dismissed
  2. 2.The preliminary objection filed on 23.06.2015 is dismissed
  3. 3.Each party shall bear own costs of the proceedings

Authorities

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Legislation

  • Work Injury Benefit Actsection 10(1)
  • Limitation of Actions Actsection 4(2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Employment and Labour Relations Court Actsection 12
  • Labour Relations Act, 2007sections 68(1), 69, 73, 73(3)
  • Employment Act, 2007section 90
Jurisdiction invoked
Article 159(2)(d) of the Constitution; section 10(1) of the Work Injury Benefit Act (Cap 236); section 12 of the Employment and Labour Relations Court Act (Cap 234B); Sections 4(2) of the Limitation of Actions Act (Cap 22)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers Union v Kisima Farm Limited [2015] KEELRC 673 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/673/eng@2015-07-31

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