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ELRCDismissedNot stated in judgment (Ruling on Application dated 9th April 2015)· [2015] KEELRC 947 (KLR)

Desidery Tyson Otieno v Rift Valley Railways Kenya Limited [2015] KEELRC 947 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
16 June 2015
JRJames Rika
869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that time spent negotiating a settlement does not count against an employee's three-year deadline to sue.

What this practically means

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Executive summary

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This ruling of the Industrial Court at Mombasa, delivered by James Rika, Judge, on 16th June 2015, determined the Respondent's application dated 9th April 2015 seeking review and setting aside of ex parte orders made on 14th November 2014. Those earlier orders had found the ex parte Applicant Desidery Tyson Otieno's intended claim against his former employer was not time-barred under Section 90 of the Employment Act, and directed that his Statement of Claim be deemed filed and summons issued upon payment of requisite fees. The Respondent argued that Section 90 does not confer jurisdiction to extend time and relied on a recent Court of Appeal decision at Malindi, contending the orders flowed from judicial craft and innovation. The Applicant opposed, noting the Respondent had conceded jurisdiction in the substantive claim. The Court held that the orders of 14th November 2014 were not an extension of time: it had not enlarged the 3-year statutory period, which it had already observed is not discretionary but jurisdictional. Rather, the Court had advised the Applicant that his claim remained within time because the clock stops during conciliation, negotiation and other non-adjudicatory dispute settlement mechanisms, anchored on Article 159 of the Constitution. The Applicant had demonstrated formal negotiations with his employer, a tentative settlement and a prepared discharge voucher; the breakdown restarted the clock. The Court declined to revisit its orders and directed that the substantive claim proceed as scheduled, making no order on costs.

Key legal issues

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01

Nature of the orders of 14th November 2014

Holding

The orders were not an extension of time under Section 90 of the Employment Act; the Court merely advised that the Claim was within the statutory 3-year period

Reasoning

The Court held it did not enlarge the 3-year period under Section 90, which it had observed is not discretionary and is jurisdictional law. What the Court did was explain that during negotiation between the parties, the clock stops. The Applicant had demonstrated formal negotiation with the Employer, a tentative settlement and a prepared discharge voucher, so the breakdown in negotiation restarted the clock.

p. 1
02

Whether time frozen by non-adjudicatory mechanisms requires enlargement after the clock restarts

Holding

No; when the clock stops, time is frozen and ceases to run, and there is nothing to warrant revisiting the orders

Reasoning

The Court reasoned that employment disputes go through a multiplicity of adjudicatory and non-adjudicatory mechanisms during which time is deemed frozen, anchored on Article 159 of the Constitution. Time frozen does not require enlargement after the clock restarts. The approach sought by the Respondent would force employees to accept abysmally low out-of-court settlements or leave employment with nothing.

p. 2

Legal principles established

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  • Where parties engage in conciliation, negotiation and other non-adjudicatory dispute settlement mechanisms before coming to Court, the limitation clock stops

Court orders

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  1. 1.The Respondent's Application seeking review and setting aside of the ex parte Orders of 14th November 2014 is refused
  2. 2.Hearing of the substantive Claim between the Parties to proceed as scheduled
  3. 3.No order on the costs

Authorities

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Legislation

  • Employment ActSection 90
  • Labour Relations Act 2007Section 62[3]
  • Constitution of KenyaArticle 159
Jurisdiction invoked
Section 90 of the Employment Act; Article 159 of the Constitution

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, "Desidery Tyson Otieno v Rift Valley Railways Kenya Limited [2015] KEELRC 947 (KLR)", Case Analysis (2015). Not stated in judgment (Ruling on Application dated 9th April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/947/eng@2015-06-16

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