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ELRCDismissedNot stated in judgment (application filed 16.05.2016)· [2016] KEELRC 935 (KLR)

Kenya Union of Domestic Hotels Educational Institutions and Hospital Workers v Board of Management, Makindu High School [2016] KEELRC 935 (KLR)

Employment and Labour Relations Court (Industrial Court)
22 July 2016
705 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The Employment Court in Nyeri dismissed a union's request to file a claim late because it never explained the legal basis for extending time.

What this practically means

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Executive summary

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The claimant union filed a notice of motion on 16.05.2016 under sections 12(2) and 3(1) of the Industrial Court Act, 2011 seeking leave to file a memorandum of claim out of time on behalf of three grievants, Samuel I. Nzui, Ndunda M. Izenze and Samuel M. Kituku, allegedly unfairly terminated by the respondent. The grievants, school bus employees, were interdicted by letter dated 04.02.2009 following theft of gadgets from the respondent's school bus; they were arrested, prosecuted, and acquitted on 28.04.2011 under section 215 of the Criminal Procedure Code. A statutory conciliation ended in a certificate of disagreement on 04.12.2013. The respondent opposed through grounds of opposition filed 01.07.2016 by F.O. Makori, Litigation Counsel, contending that the three-year limitation under section 90 of the Employment Act, 2007 had lapsed - as conceded by the applicant - so the court lacked jurisdiction to extend time. The court found the grievants are still serving under an indefinite interdiction that was never lifted, with the employment relationship capable of being continued, terminated or otherwise acted upon, or alternatively that they were constructively terminated from the date of interdiction or acquittal. It held the applicant failed to establish a legal basis for extending time, that the time-barred cause of action and the limits of the extension sought were unclear, and that possible laches since the acquittal was a matter for a properly placed suit. The application filed on 16.05.2016 was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether time should be extended for filing the claim

Holding

The application was dismissed as misconceived; no legal basis for extension of time was established

Reasoning

The court found the grievants were interdicted indefinitely and never dismissed, so the employment relationship remained in limbo and no clear time-barred cause of action was identified. The applicant conceded the three-year limitation under section 90 had lapsed but could not establish a statutory basis for the court to extend time. The facts and prayers were described as blurred throughout the application.

p. 3
02

Status of the grievants' employment

Holding

The grievants remain under indefinite interdiction, still in service, or alternatively constructively terminated from the date of the interdiction or acquittal

Reasoning

The interdiction of 04.02.2009 was never lifted, so the grievants are still serving and the respondent remains entitled to make administrative or managerial decisions on the relationship. Alternatively the grievants may be treated as constructively terminated. Those matters would fall for determination in a properly placed suit.

p. 2
03

Whether laches defeats the claim

Holding

Possible laches since the acquittal on 28.04.2011 was raised but left for determination in a properly placed suit

Reasoning

The respondent submitted that the grievants and the union were guilty of laches for not moving the court after the acquittal. The court accepted this could well be so but held it was a matter for substantive determination and not decisive of the extension-of-time application.

p. 2

Legal principles established

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  • A party seeking extension of time must establish a legal basis justifying the extension; where the cause of action and limits of the extension sought are unclear, the application fails

Court orders

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  1. 1.The application filed on 16.05.2016 seeking to file the memorandum of claim out of time is dismissed
  2. 2.Each party to bear own costs of the application

Authorities

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Legislation

  • Industrial Court Actsection 12(2) and 3(1)
  • Employment Act, 2007section 90
  • Criminal Procedure Codesection 215
Jurisdiction invoked
Sections 12(2) and 3(1) of the Industrial Court Act, 2011 and all enabling provisions of the law

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 Domestic Hotels Educational Institutions and Hospital Workers v Board of Management, Makindu High School [2016] KEELRC 935 (KLR)", Case Analysis (2016). Not stated in judgment (application filed 16.05.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/935/eng@2016-07-22

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