Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Ltd [2015] KEELRC 924 (KLR)
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
#Key legal issues
#Whether a trade dispute is synonymous with a contract of service
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
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.
Whether time stops running during conciliation
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
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.
Whether limitation is procedural or jurisdictional
Limitation is substantive and jurisdictional; a time-barred contractual claim cannot be entertained and consent or Article 159 cannot confer jurisdiction
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.
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.The application seeking leave to file suit out of time is dismissed with no order as to costs
- 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
- 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.