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ELRCDismissedNot stated in the judgment· [2016] KEELRC 417 (KLR)

Kenya Union of Sugar Plantation and Allied Workers v Chemelil Sugar Company Limited [2016] KEELRC 417 (KLR)

Employment and Labour Relations Court
27 October 2016
1,117 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 and Labour Relations Court dismissed a dismissal claim filed 14 years late, confirming the six-year Limitation of Actions deadline.

What this practically means

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Executive summary

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The Claimant union sued on behalf of its member, Thomas Odero Minda (the Grievant), alleging unfair and wrongful dismissal by the Respondent on 16th January 2001, and dismissal of his internal appeal by letter dated 17th December 2004. The Memorandum of Claim, filed on 4th January 2015, contained no prayers or remedies. The Respondent filed a Notice of Preliminary Objection on 14th September 2015 seeking striking out of the entire suit with costs on the grounds that it was statute barred under section 4(2) of the Limitation of Actions Act and section 90 of the Employment Act, that the court consequently had no jurisdiction, and that the suit was an abuse of process. The Respondent relied on four eKLR authorities upholding preliminary objections on limitation. The Claimant countered that the dispute had gone through the Recognition Agreement procedure and conciliation, and that the court process began at the enterprise level. In a determination delivered on 27th October 2016, Maureen Onyango J restated the chronology: dismissal on 16th January 2001; hospital treatment ending with a fitness-to-resume certificate dated 2nd October 2000; a conciliator's report of 6th June 2012; and filing on 4th January 2015. The court held that since the dismissal predated the Employment Act 2007, section 90 of that Act did not apply; the applicable limitation was the six-year period under section 4(1) of the Limitation of Actions Act. Filed 14 years after the cause of action arose, the claim was way out of time, an abuse of court process, and beyond redemption. The court dismissed the case and ordered each party to bear its own costs.

Key legal issues

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01

Applicable limitation statute

Holding

Section 4(1) of the Limitation of Actions Act applies, not section 90 of the Employment Act 2007, because the dismissal predated the 2007 Act

Reasoning

The Grievant was dismissed on 16th January 2001, before the Employment Act 2007 was enacted. Consequently section 90 of that Act could not govern the claim. The court held the 6-year period under section 4(1) of the Limitation of Actions Act was the applicable limitation, which the claim filed in January 2015 far exceeded.

p. 3
02

Jurisdiction where suit is statute barred

Holding

The court has no jurisdiction to entertain a suit filed outside the limitation period; such a suit is an abuse of process and must be dismissed

Reasoning

The Respondent's preliminary objection contended the suit was statute barred and the court lacked jurisdiction. The court agreed, finding the claim filed 14 years after dismissal, way out of time, incapable of being sustained by argument, and an abuse of the court's process, warranting dismissal even though no formal prayers for remedies had been pleaded.

p. 3
03

Effect of internal dispute resolution process on limitation

Holding

The union's internal dispute-resolution and conciliation process did not save the claim from being out of time

Reasoning

The Claimant argued the dispute went through the Recognition Agreement procedure and conciliation and was therefore procedurally before the court. The court noted the conciliator's report of 6th June 2012 and the filing on 4th January 2015, but found that even accounting for those steps, the suit filed 14 years after dismissal was clearly out of time and beyond redemption.

p. 3

Legal principles established

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  • A dismissal that occurred before the Employment Act 2007 came into force is governed by section 4(1) of the Limitation of Actions Act (6 years), not section 90 of the Employment Act (3 years)
  • A suit filed far outside the limitation period is an abuse of court process and will be dismissed

Court orders

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  1. 1.The case is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActSection 4(2)
  • Employment Act, 2007Section 90

Cases cited (4)

  • Josephat Ndirangu v Henkel Chemelils (EA) Ltd
    [2013] eKLR
  • Boniface Inondi Otieno v Mehta Electrical Ltd
    [2013] eKLR
  • Willis Onditi Odhiambo v Gateway Insurance Co. Ltd
    [2004] eKLR
  • Peter Nyamai & 7 others v M. J, Clarke Ltd
    [2013] eKLR
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over employment disputes; challenged via preliminary objection on limitation grounds (Section 4(1) Limitation of Actions Act; Section 90 Employment 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, "Kenya Union of Sugar Plantation and Allied Workers v Chemelil Sugar Company Limited [2016] KEELRC 417 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/417/eng@2016-10-27

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