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ELRCDismissedCause No 39 of 2016· [2016] KEELRC 327 (KLR)

Francis Onini Opondo &2 others v Majani Mingi Spining Factory & another [2016] KEELRC 327 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
2 November 2016
RSRadido Stephen
872 words in judgment
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The bottom line

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Kenya's Employment Court ruled that the three-year deadline for employment claims does not apply to disputes that arose before the 2007 Employment Act came into force.

What this practically means

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Executive summary

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The Claimants, former employees represented initially without an advocate, sued on 12 February 2016 for terminal dues. The Respondents filed a Notice of Preliminary Objection contending that the claim was statute barred under section 90 of the Employment Act, 2007, that the claim was therefore fatally defective, that the 1st Respondent was a non-entity in law, and that the claim was an abuse of process warranting dismissal with costs. The Court traced the dispute's history: it arose before the Employment Act commenced, was reported to the Minister for Labour in 2007 under the Trade Disputes Act, cap. 234 (repealed), went through a series of conciliation investigators, and was reported settled by the Union on 30 October 2015. Applying paragraph 4(a) of the Fifth Schedule to the Labour Relations Act, 2007, the Court held that the pre-2007 dispute must be determined under the repealed Trade Disputes Act, which contained no limitation period; section 90 of the Employment Act therefore did not apply, and the limitation objection failed. The Court further held that the objections based on the 1st Respondent's legal status and the alleged settlement could not be determined as preliminary objections, as they lay outside that procedural mechanism. The Court dismissed the preliminary objection with no order as to costs. Judgment was delivered in Nakuru on 2 November 2016 by Radido Stephen, Judge.

Key legal issues

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01

Whether section 90 of the Employment Act, 2007 bars a claim arising before its commencement

Holding

It does not; transitional provisions preserve the repealed Trade Disputes Act regime, which had no limitation period

Reasoning

The dispute accrued before the Employment Act, 2007 commenced. Paragraph 4(a) of the Fifth Schedule to the Labour Relations Act, 2007 requires matters commenced before that Act to be determined under the Trade Disputes Act (repealed). That repealed statute contained no limitation provision, so the section 90 objection fails.

p. 2
02

Whether the claimant-employees' suit was proper given prior conciliation and a Union settlement letter

Holding

Not determinable on a preliminary objection

Reasoning

The Respondents relied on the Union's letter of 30 October 2015 indicating the dispute was settled, and argued the 1st Respondent was a non-entity. The Court held these objections raise factual/procedural questions inappropriate for a preliminary objection and directed the Respondents to the known procedural route.

p. 3

Legal principles established

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  • Section 90 of the Employment Act, 2007 does not apply to disputes that accrued before its commencement; such disputes are determined under the repealed Trade Disputes Act per paragraph 4(a) of the Fifth Schedule to the Labour Relations Act, 2007
  • The repealed Trade Disputes Act contained no limitation period
  • Questions requiring facts or the procedural route cannot be determined by way of preliminary objection

Court orders

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  1. 1.The Notice of Preliminary Objection is dismissed with no order as to costs

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Labour Relations Act, 2007Fifth Schedule, paragraph 4(a)
  • Trade Disputes Act, cap. 234 (repealed)section 5(1)
Jurisdiction invoked
Not expressly stated; original jurisdiction under the Employment Act, 2007 and Labour Relations Act, 2007 framework

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, "Francis Onini Opondo &2 others v Majani Mingi Spining Factory & another [2016] KEELRC 327 (KLR)", Case Analysis (2016). Cause No 39 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/327/eng@2016-11-02

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