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ELRCDismissedELRC No. 551 of 2014 (consolidated with ELRC Nos. 552, 553, 554 and 555 of 2014)· [2015] KEELRC 808 (KLR)

Phillip Mghanga v Mumi Hotels & Resorts Ltd. T/A Bahari Beach Hotel [2015] KEELRC 808 (KLR)

Employment and Labour Relations Court
3 July 2015
OMO. N. Makau
1,308 words in judgment
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The bottom line

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A Kenyan court ruled that a worker's old dismissal case wasn't filed too late because union action had kept the claim alive.

What this practically means

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Executive summary

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The Claimant, summarily dismissed on 31/1/2007, sued the Respondent for unfair termination, and the Respondent raised a preliminary objection that the suit, filed on 5/11/2014, was time barred under Section 90 of the Employment Act, which limits employment contract claims to 3 years. The Claimant countered that his Trade Union had reported the dispute to the Minister for Labour on 15/2/2007 under the repealed Trade Disputes Act; an Investigator appointed under Section 7 of the TDA produced a report dated 7/7/2011 finding the dismissal unlawful and unfair; and after the Respondent disputed the report, the union referred the dispute to the Industrial Court under Section 14(9) of the TDA, with notification served on 5/8/2013. The Claimant relied on the transitional provisions of the Labour Relations Act (Section 84 and Section 4 of the 5th Schedule), under which pre-LRA summary dismissal disputes are governed by the repealed TDA, and on the Court of Appeal decision in Office Restaurant v Kenya Hotels & Allied Workers Union, holding that time stops running when the dispute settlement mechanism under the TDA is commenced. The court, bound by the Court of Appeal decision, held that the dispute having been commenced within 28 days as required by Section 4(4) of the TDA and continuing until referral to the Industrial Court in July 2013, the suit could never become time barred. It declined to fault the form of the suit, preferring substantial justice under Article 159, and dismissed the preliminary objection with costs, the ruling applying to the four consolidated suits.

Key legal issues

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01

Whether the suit is time barred under Section 90 of the Employment Act

Holding

The suit is not time barred as the dispute settlement mechanism under the Trade Disputes Act commenced on 15/2/2007, suspending limitation, until referral to the Industrial Court in July 2013

Reasoning

The Claimant's dispute was commenced under the Trade Disputes Act before the Labour Relations Act came into force. By dint of Section 4 of the 5th Schedule to the Labour Relations Act, the dispute is governed by the repealed TDA. Following the Court of Appeal in Office Restaurant, time stopped running when the dispute was referred to the Minister of Labour. The Employment Act, having come into force on 2/6/2008, does not apply retrospectively to a January 2007 dismissal.

p. 3

Legal principles established

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  • Time stopped running for purposes of statutory limitations when the dispute settlement mechanism under the Trade Disputes Act was commenced by the formal reference of the dispute to the Minister of Labour

Court orders

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  1. 1.The Preliminary Objection by the Respondent is dismissed with costs
  2. 2.This ruling shall apply to ELRC 552, 553, 554 and 555 of 2014 which were consolidated with this suit

Authorities

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Legislation

  • Employment ActSection 90
  • Trade Disputes Act (repealed)Sections 7, 14(7), 14(9), 4(4)
  • Labour Relations ActSection 84; Section 4 of the 5th Schedule; Rule 4 of the 5th Schedule
  • Constitution of KenyaArticle 159

Cases cited (2)

  • OFFICE RESTAURANT VERSUS KENYA HOTELS & ALLIED WORKERS UNION
    [2014] eKLR
  • ESTHER KAHI KIHIMA -VS- TRIDENT INSURANCE CO.LT.D
    [2013] eKLR
Jurisdiction invoked
Article 159 of the Constitution; Employment and Labour Relations Court jurisdiction over employment disputes

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, "Phillip Mghanga v Mumi Hotels & Resorts Ltd. T/A Bahari Beach Hotel [2015] KEELRC 808 (KLR)", Case Analysis (2015). ELRC No. 551 of 2014 (consolidated with ELRC Nos. 552, 553, 554 and 555 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/808/eng@2015-07-03

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