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ELRCPartially AllowedNot stated in judgment (Notice of Motion filed 26th June 2015)· [2016] KEELRC 1189 (KLR)

Kenya Electrical Trades & Allied Workers Ltd v Kenya Power & Lightning Co.Ltd [2016] KEELRC 1189 (KLR)

Employment and Labour Relations Court
6 May 2016
1,310 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 Court ruled that time spent in mandatory conciliation doesn't count against the three-year deadline to file an employment lawsuit.

What this practically means

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Executive summary

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The Applicant union filed a Notice of Motion on 26th June 2015 seeking review and setting aside of the court's ruling of 29th May 2015, which had found its suit statute-barred under Section 90 of the Employment Act, 2007, which imposes a three-year limitation period for employment contract suits. The Applicant relied on Rule 32(1)(a) and (b) of the Employment and Labour Relations Court (Procedure) Rules 2010, arguing discovery of new and important documents showing the conciliation process commenced on 10th November 2010 when the dispute was reported to the Minister for Labour, and an error apparent on the face of the record. The Respondent opposed, contending there was no error on the face of the record, the evidence was always within the Applicant's reach, the application was in the nature of an appeal, and no explanation was given for the delay in commencing proceedings. The court disposed of the error-on-the-face ground immediately, finding no such error was disclosed. Considering the new documents, the court found the conciliation process began on 10th November 2010; Conciliator Mrs Kahutha was appointed on 6th January 2011 but transferred, Mr R. Twaya was appointed on 11th January 2012, and a certificate of unresolved dispute was issued on 3rd April 2014. The suit was filed on 27th February 2015, less than a year later. Following its prior decisions, the court held conciliation and issuance of a certificate of unresolved dispute is a necessary statutory pre-trial process, and the claimant could not be penalized for delay not of its making. The review application succeeded to that extent; the main suit was to take its normal course, with costs in the cause.

Key legal issues

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01

Discovery of new and important matter under Rule 32(1)(a)

Holding

The documents showing the conciliation process commenced on 10th November 2010 and a certificate of unresolved dispute issued on 3rd April 2014 were new and important matter not in the possession of the claimant's advocate when the ruling was delivered, justifying review

Reasoning

Rule 32(1)(a) of the ELRC (Procedure) Rules 2010 requires discovery of new and important matter or evidence not within the applicant's knowledge or production after due diligence at the time of the order. The court found the documents demonstrating the conciliation chronology were not in the court record or the advocate's possession at the hearing, and the delay in filing was attributable to the statutory conciliation process, not the claimant.

p. 3
02

Error apparent on the face of the record under Rule 32(1)(b)

Holding

This ground failed because the applicant did not disclose any error apparent on the face of the record

Reasoning

The applicant relied on both Rule 32(1)(a) and (b), but no mistake or error apparent on the face of the record was identified. The court disposed of this ground immediately as lacking merit, leaving the discovery of new evidence as the real basis for review.

p. 2
03

Limitation under Section 90 of the Employment Act and the effect of conciliation

Holding

The suit filed on 27th February 2015, less than one year after the certificate of unresolved dispute was issued on 3rd April 2014, was within time, the conciliation being a necessary statutory pre-trial process

Reasoning

The court held, following its own prior decisions, that conciliation and issuance of a certificate of unresolved dispute is a mandatory statutory pre-trial step. Section 67(1) allows conciliation within thirty days of appointment or an extended period agreed by the parties. The claimant could not be penalized for delay not of its making, so the three-year limitation period under Section 90 did not bar the suit.

p. 3

Legal principles established

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  • In labour disputes, conciliation and provision of a certificate of unresolved dispute is a necessary statutory pre-trial process, and time does not run against a claimant while awaiting the certificate
  • An erroneous view of evidence or law is a ground of appeal, not a ground for review
  • The court cannot penalize a claimant for delay in filing a suit occasioned by the conciliation process not of the claimant's making

Court orders

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  1. 1.The review application succeeds to the extent that the court's ruling of 29th May 2015 finding the suit time-barred is reviewed; the court is satisfied the suit was filed within the limitation period
  2. 2.The main suit to take its normal course
  3. 3.Costs in the Cause
Jurisdiction invoked
Rule 32 of the Employment and Labour Relations Court (Procedure) Rules 2010 (review jurisdiction)

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 Electrical Trades & Allied Workers Ltd v Kenya Power & Lightning Co.Ltd [2016] KEELRC 1189 (KLR)", Case Analysis (2016). Not stated in judgment (Notice of Motion filed 26th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1189/eng@2016-05-06

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