Kenya Union of Commercial, Food And Allied Workers v New Kyeni Farmers Co-operative Society [2016] KEELRC 628 (KLR)
The bottom line
#A Kenyan court allowed a 1983 unfair dismissal claim to proceed, holding older trade dispute rules—not current time limits—govern pre-2007 disputes.
What this practically means
#Executive summary
#Key legal issues
#Applicable statute for a pre-2007 trade dispute
The repealed Trade Disputes Act, Cap. 234 applies to the dispute, not the limitation regime of the Employment Act, 2007
The 5th Schedule to the Labour Relations Act, 2007, section 2(4), preserves the Trade Disputes Act for disputes commenced before that Act's commencement. The respondent made no submissions on the applicability of the repealed Act. The court is bound to enforce statutory law for the time being enacted and applicable, hence Cap. 234 governs and the limitation objection fails.
Validity of the notification of dispute under section 14(7) of the repealed Trade Disputes Act
The 2012 notification was invalid: the Act had ceased to exist (the section was moribund) and the notice was signed only for the union, not both parties as required
The court noted two defects: the notification was purportedly made on 20.03.2012 under section 14(7) of an Act that had already been repealed, rendering the section moribund and inapplicable; and the section required the notice to be signed by both parties, whereas it was signed only for the union. Nevertheless, the court proceeded on the basis that the repealed Act applied via the transitional provision.
Limitation of the claim
The suit was not time barred because the repealed Trade Disputes Act regime applied to this pre-2007 dispute
The dismissal occurred on 26.02.1983 and the Minister's report on 26.06.1985. The respondent invoked section 4(1) of the Limitation of Actions Act and section 90 of the Employment Act, 2007. The court held the transitional provision in the 5th Schedule to the Labour Relations Act preserved the repealed Trade Disputes Act for this dispute, so those limitation statutes did not bar the suit.
Legal principles established
#- By virtue of section 2(4) of the 5th Schedule to the Labour Relations Act, 2007, trade disputes commenced before commencement of that Act are governed by the repealed Trade Disputes Act, Cap. 234
- Where a pre-2007 trade dispute is governed by the repealed Trade Disputes Act, limitation under section 90 of the Employment Act, 2007 does not bar the claim
Court orders
#- 1.The preliminary objection dated 13.09.2016 and filed on 14.09.2016 is dismissed with costs
- 2.Parties invited to fix an appropriate date for hearing of the suit
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Act to determine a trade dispute/memorandum of claim; provision not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food And Allied Workers v New Kyeni Farmers Co-operative Society [2016] KEELRC 628 (KLR)", Case Analysis (2016). Not stated in the excerpt of judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/628/eng@2016-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.