Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedMiscellaneous application (Nakuru ELRC), leave to file suit out of time motion dated 11 March 2015· [2015] KEELRC 924 (KLR)

Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Ltd [2015] KEELRC 924 (KLR)

Employment and Labour Relations Court
29 May 2015
4,850 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that a three-year deadline to sue over unfair dismissal keeps running during union conciliation, and a late claim cannot be rescued.

What this practically means

#

Executive summary

#
The Kenya Electrical Trades & Allied Workers Union moved the Employment and Labour Relations Court at Nakuru ex parte on 11 March 2015 seeking leave to file suit on behalf of three Grievants (Jackson Karimi Kimata, Lucy Ng'etich and Rebecca Ng'etich) whose services Kenya Power & Lighting Company Ltd terminated on 13 January 2009, beyond the three-year limitation in section 90 of the Employment Act, 2007. The Union argued that conciliation under the Labour Relations Act, being constitutionally sanctioned ADR under Article 159(2)(d), suspends limitation until the conciliator issues a certificate, and that substantive justice should trump technicalities. The Respondent countered that limitation is jurisdictional, that the Court's jurisdiction under Article 162(3) derives from statute and cannot be self-conferred, and that time could at most be suspended for the 30-day conciliation window. Although four judges of the inaugural Court had held that time stops running during conciliation, Radido J declined to follow that jurisprudence. He held that a trade dispute arising from dismissal flows from the underlying contract of service; that the Labour Relations Act's conciliation timelines are statutory and any ADR must be completed within the three-year outer limit; that no certificate or affidavit disclosing breakdown of conciliation was exhibited; and, relying on Divecon v Samani and Yew Bon Tew, that limitation is substantive and jurisdictional, so a time-barred contractual claim cannot be entertained. The Court disagreed with its sister judges, describing itself as 'the lone voice in the wilderness', dismissed the motion with no order as to costs, and directed that the ruling apply mutatis mutandis in Nakuru Misc. Cause No. 4 of 2015.

Key legal issues

#
01

Whether a trade dispute is synonymous with a contract of service

Holding

A trade dispute arising from dismissal flows directly from the contractual relationship between employee and employer; the union's involvement is by statutory intervention, so the section 90 limitation applies

Reasoning

The Grievants had contractual relationships with the Respondent and suffered actionable wrongs on dismissal. Trade unions gain competence to agitate for members through recognition agreements, but the cause of action belongs to the Grievants, not the union. The argument that trade disputes are not contractual was dismissed as a red herring.

p. 6
02

Whether time stops running during conciliation

Holding

Time does not stop running during conciliation; the three-year period under section 90 is an outer limit and any ADR must be completed within it

Reasoning

The Labour Relations Act sets statutory timelines for reporting and conciliation; if not resolved within 30 days or extended time, the dispute is deemed unresolved. Holding otherwise would run counter to the objective of expeditious resolution, and neither parties nor the Cabinet Secretary can extend the limitation period under the guise of conciliation.

p. 9
03

Whether limitation is procedural or jurisdictional

Holding

Limitation is substantive and jurisdictional; a time-barred contractual claim cannot be entertained and consent or Article 159 cannot confer jurisdiction

Reasoning

Relying on Divecon v Samani and Yew Bon Tew, the Court held that the cause of action itself is barred, the defendant acquires an accrued right, and no court may entertain what cannot be done. Article 159(2)(d) does not blanket a jurisdictional bar.

p. 9

Legal principles established

#
  • No court has jurisdiction to extend time or grant leave to file suit out of time after expiry of limitation where the cause of action is grounded on contract
  • Section 90 of the Employment Act, 2007 fixes an outer three-year limit irrespective of conciliation or other dispute resolution modes
  • Limitation is a substantive and jurisdictional, not merely procedural, matter

Court orders

#
  1. 1.The application seeking leave to file suit out of time is dismissed with no order as to costs
  2. 2.The ruling and orders apply mutatis mutandis in Nakuru Misc. Cause No. 4 of 2015, Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Co. Ltd

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 159(2)(d); Article 162(3)
  • Employment Act, 2007section 90
  • Labour Relations Actsections 2, 15(3), 62, 67, 69, Part VII and Part VIII
  • Employment and Labour Relations Court Actsection 15(3)
  • Limitation of Actions Actsections 4(1), 27, 28, Part III
  • Industrial Court Actsections 12(2), 13(8)
  • Trade Disputes Act (repealed)not specified

Cases cited (18)

  • Banking Insurance & Finance Union (K) v Bank of India
    (2014) eKLR
  • Francis Muthini Mue v Raksh Award t/a Ranwaa Restaurant & Ar.
  • Kenya Scientific Research International Technical and Allied Workers Union v Rainald Schuvera
    (2012) eKLR
  • Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base
    (2013) eKLR
  • Pauline Waithira Muraguri v Muranga Farmers Co-Operative Union Ltd
    (2014) eKLR
  • Kenya Chemical & Allied Workers Union v East African Portland Cement & Co. Ltd
    (2013) eKLR
  • Bata Shoe Company (K) Ltd v Laban Chema Libabu
    (2013) eKLR
  • Jeremiah Mutua Mutea v The Standard Newspapers Ltd
    (2014) eKLR
  • Kenya Game Hunting & Safari Workers Union v Southern Cross Safaris Ltd
    (2014) eKLR
  • Desidery Tyson Otieno Onyango v Rift Valley Railways (Kenya) Limited
    (2014) eKLR
  • Willis Onditi Odhiambo v Gateway Insurance Co. Ltd
    (2014) eKLR
  • Peter Nyamai & Ors v M J Clarke
    (2013) eKLR
  • Kenya Local Government Workers Union v Kangundo Town Council
    Nairobi Cause No. 71 of 2009
  • Divecon v Samani
    (1995-1998) EA 48
  • Yew Bon Tew v Kenderaan Basuri Mara
    (1982) 3 All ER 833
  • Mary Kasiwa v Scorpio Enterprises Ltd
    Mombasa Cause No. 214 of 2013
  • Charles Kiruthi Mwangi v G4S Security Ltd
    Mombasa Cause No. 1418 of 2010
  • Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Co. Ltd
    Nakuru Misc. Cause No. 4 of 2015
Jurisdiction invoked
Article 162(3) of the Constitution; Employment and Labour Relations Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Ltd [2015] KEELRC 924 (KLR)", Case Analysis (2015). Miscellaneous application (Nakuru ELRC), leave to file suit out of time motion dated 11 March 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/924/eng@2015-05-29

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