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ELRCStruck OutCause (number not stated in judgment)· [2015] KEELRC 936 (KLR)

Kenya Plantation & Agricultural Workers Union v Kensalt Limited & another [2015] KEELRC 936 (KLR)

Employment and Labour Relations Court
29 May 2015
RSRadido Stephen
1,152 words in judgment
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The bottom line

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A Kenyan court ruled that conciliation does not pause the three-year deadline to sue for unfair dismissal, so the claim was struck out.

What this practically means

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Executive summary

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The Union sued Kensalt Limited and Salt Manufacturers (K) Ltd on behalf of grievant Geoffrey Muroki, claiming wrongful dismissal and/or termination. The grievant was allegedly dismissed verbally on 11 January 2010 and received a letter on 15 January 2010 inviting him to collect his full and final dues. The Memorandum of Claim was filed on 4 September 2013. The Respondents raised a preliminary objection that, under section 90 of the Employment Act, 2007, the claim was statute barred, the three-year limitation period expiring on or about 12 January 2013. They also objected that Salt Manufacturers (K) Ltd was not privy to the employment relationship; the court declined to determine that limb as it would require examination of evidence. The Union contended that a trade dispute reported to the Cabinet Secretary on 3 February 2010 and the ensuing conciliation, which produced a report dated 29 August 2012 recommending six months' wages as compensation, stopped time from running under section 62 of the Labour Relations Act. The court rejected this, endorsing Rika J's dicta that section 90 provides outer time limits irrespective of the mode used to come to Court, and holding that a cause of action for wrongful dismissal accrues on the date of dismissal, conciliation providing no exception. The court also doubted the suggestion in the Barclays Bank case that conciliator recommendations could found a fresh cause of action. The preliminary objection was upheld, the Memorandum of Claim struck out, with no order as to costs.

Key legal issues

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01

Whether conciliation under the Labour Relations Act suspends the limitation period under section 90 of the Employment Act

Holding

No. The three-year outer limit in section 90 applies irrespective of the mode used to come to Court; time continued to run during conciliation and the claim filed on 4 September 2013 was out of time.

Reasoning

The court endorsed Rika J's dicta in the Kangundo Town Council case that section 90 prescribes outer time limits irrespective of the mode used by a party in coming to Court, and that ministerial or conciliation processes cannot extend the limit beyond the three years provided. It rejected Ongaya J's suggestion in the Barclays Bank case that the conciliator's recommendations could found a fresh cause of action, holding untenable in law the notion that conciliation interrupts accrual of the cause of action, which arises on the date of dismissal.

p. 2
02

Whether the objection on privity against Salt Manufacturers (K) Ltd should be determined

Holding

Not determined, as it would require examination of evidence.

Reasoning

The second limb of the preliminary objection concerned whether Salt Manufacturers (K) Ltd was privy to the employment relationship between the Grievant and Kensalt Limited. The court declined to address it because resolving privity would require an examination of evidence, which is unsuitable for determination by way of a preliminary objection.

p. 1

Legal principles established

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  • Section 90 of the Employment Act provides the outer time limit for filing claims irrespective of the mode of coming to Court, including conciliation; conciliation does not suspend the limitation period.
  • A cause of action for unfair termination or wrongful dismissal accrues on the date of the termination or dismissal, and conciliation cannot be an exception to that general rule.

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The Memorandum of Claim is struck out
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Labour Relations Act, 2007section 62
  • Labour Relations Act, 2007section 73(1)
  • Labour Relations Act, 2007section 68
  • Limitation of Actions Act
  • Trade Disputes Act (repealed)

Cases cited (8)

  • Maria Machocho v Total Kenya Limited
    (2013) eKLR
  • Divecon Limited v Samani
    (1995-1998) 1 EA 48
  • Joseph Odero Ochola v Kenya Railways Corporation
    Nairobi Misc Cause No. 40 of 2013
  • Kenya Local Government Workers Union v Kangundo Town Council
    Nairobi Cause No. 71 of 2009
  • Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base
    Nyeri Cause No. 29 of 2012
  • Banking, Insurance & Finance Union (K) v Barclays Bank of Kenya Limited
    (2012) eKLR
  • Peter Nyamai & Ors v M J Clarke
    (2013) eKLR
  • Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Co. Ltd
    Nakuru Misc Cause No. 3 of 2015
Jurisdiction invoked
Original employment and labour relations jurisdiction under the Employment and Labour Relations Court Act (dispute stated as wrongful dismissal and/or termination of Geoffrey Muroki)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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 Kensalt Limited & another [2015] KEELRC 936 (KLR)", Case Analysis (2015). Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/936/eng@2015-05-29

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