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ELRCDismissedNot stated in the judgment· [2016] KEELRC 409 (KLR)

Kudheiha Workers v Mahiga Girls High School [2016] KEELRC 409 (KLR)

Employment and Labour Relations Court
4 November 2016
BOByram Ongaya
580 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a worker's Kshs. 235,330 claim because it was filed after the three-year deadline, and flawed conciliation could not extend it.

What this practically means

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Executive summary

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The claimant union filed a memorandum of claim on 29.06.2016 on behalf of its member, Mary Wanjiku Wagogi (the grievant), alleging non-payment of terminal benefits following her dismissal on 29.01.2013. The claimant sought payment under the collective agreement: three months' pay in lieu of notice (Kshs. 24,000.00), service gratuity for 12 years (Kshs. 96,000.00), salary for five months while on suspension (Kshs. 40,000.00), underpayment of wages from January 2010 to December 2012 (Kshs. 27,330.00), and six months' compensation for loss of employment (Kshs. 48,000.00), totalling Kshs. 235,330.00. The respondent, the Attorney General through Litigation Counsel F.O. Makori, filed a memorandum of response and a preliminary objection contending that the suit was time barred under section 90 of the Employment Act, 2007, that it contravened sections 62(3) and 65(1)(b) of the Labour Relations Act, 2007, and that the court lacked jurisdiction. The court upheld the objection. It found the trade dispute was reported on 02.04.2014, beyond the 90-day window, and the conciliator was appointed on 25.11.2014, beyond the 21-day period, so the conciliatory proceedings were null and void. The claim, filed on 29.06.2016, exceeded the three-year limitation period under section 90, and the void conciliation could not adjourn that period. The suit was dismissed with an order that each party bear own costs, the court citing the emerging issues of law in the case.

Key legal issues

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01

Whether the claim was time barred under section 90 of the Employment Act, 2007

Holding

The claim was time barred; the grievant was dismissed on 29.01.2013 and the claim ought to have been filed by 29.01.2016, but was filed on 29.06.2016

Reasoning

Section 90 prescribes a three-year limitation period for claims arising from employment contracts. The dismissal occurred on 29.01.2013, so the limitation period lapsed on or about 29.01.2016. The memorandum of claim was filed on 29.06.2016, after the period had lapsed. The belated and void conciliation proceedings could not adjourn the prescribed limitation period, so the claim was statute barred and the preliminary objection was upheld.

p. 2
02

Whether the statutory conciliation proceedings were valid

Holding

The conciliatory proceedings were outside the statutory timelines and therefore null and void; the trade dispute was reported after 90 days and the conciliator was appointed after 21 days

Reasoning

Under section 62(3) of the Labour Relations Act, 2007 the trade dispute was to be reported within 90 days of the dismissal (by about 29.04.2013) but was reported on 02.04.2014 without explanation or the Minister's leave. Under section 65(1) the Minister was to appoint a conciliator within 21 days of reporting (by about 23.04.2014) but appointed one on 25.11.2014. Both steps were outside the statutory timelines, rendering the conciliation null and void.

p. 2

Legal principles established

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  • Conciliatory proceedings conducted outside the statutory timelines under the Labour Relations Act are null and void and cannot extend or adjourn the limitation period prescribed under section 90 of the Employment Act
  • Parties to statutory conciliation proceedings must be vigilant and promptly move the court where any step in the conciliation is delayed, lest the suit be rendered time barred

Court orders

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  1. 1.The preliminary objection filed on 29.07.2016 is upheld
  2. 2.The suit is dismissed as time barred under section 90 of the Employment Act, 2007
  3. 3.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Actsection 90
  • Labour Relations Actsection 62(3)
  • Labour Relations Actsection 65(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Labour Relations Act, 2007

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, "Kudheiha Workers v Mahiga Girls High School [2016] KEELRC 409 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/409/eng@2016-11-04

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