Nyabuto Arambe Abusa v Kenya Power & Lighting Co. Ltd [2015] KEELRC 848 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Applicable law and limitation where the cause of action arose before the Employment Act, 2007 came into force
The cause of action arose on suspension in March 2007 and termination in June 2007, so the repealed Trade Disputes Act and Employment Act, Cap 226 governed; invoking the Employment Act, 2007 takes the claim outside the 3-year limitation in section 90.
The court held that time limitations and the date a cause of action arises are fundamental to jurisdiction. The claimant was suspended on 20th March 2007 and terminated on 25th June 2007, before the Employment Act, 2007 commenced on 2nd June 2008. The Fifth Schedule to the Labour Relations Act preserved the repealed regime for such disputes. Reliance on the Employment Act, 2007 placed the claim outside section 90's three-year limit, which the court has no discretion to extend.
Whether the CBA and pending criminal proceedings excused the delay in filing
Neither clause 29(a) of the CBA nor the pending criminal case under the Anti-Corruption and Economic Crimes Act suspended or excused the limitation period.
The court held that a CBA can only confer legal benefit and cannot circumvent the law; the timelines for suspension under clause 29(a) were not even indicated. Criminal proceedings are matters for other courts, have a life of their own, and do not bar or suspend employment claims filed as of right before this Court. Waiting until acquittal in April 2012 and then relying on the CBA or the criminal process had no justification or legal basis.
Defective Verifying Affidavit
The undated Verifying Affidavit offended the Oaths and Statutory Declarations Act and left the claim without any valid verification, compounding the fatal defect.
Rules of the Court must be read with the substantive law, including the Industrial Court Act. Affidavits are governed by the Oaths and Statutory Declarations Act, which requires the affidavit to be signed, dated and to state the place where made. These are not mere technicalities: dating an affidavit is crucial because facts deponed may change with time. An undated affidavit is valueless and the claim is left exposed without a Verifying Affidavit.
Legal principles established
#- A CBA cannot suspend, amend or circumvent statutory limitation periods; only Parliament can change statutory time limits.
- Pending criminal proceedings are not a bar to filing an employment and labour relations claim and do not suspend the limitation period.
- A Verifying Affidavit must be signed, dated and state the place where made in compliance with the Oaths and Statutory Declarations Act; an undated affidavit is valueless and leaves the claim without verification.
- Transitional provisions in the Fifth Schedule to the Labour Relations Act require disputes arising before the commencement of that Act to be determined under the repealed Trade Disputes Act.
Court orders
#- 1.Suit struck out
- 2.Each party shall bear their own costs
- Jurisdiction invoked
- Industrial Court Act and Industrial Court Rules (first-instance employment and labour relations claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyabuto Arambe Abusa v Kenya Power & Lighting Co. Ltd [2015] KEELRC 848 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/848/eng@2015-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.