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ELRCDismissedNot stated in judgment· [2016] KEELRC 1745 (KLR)

Andrew N. Arisa v National Police Service Commission & 2 others [2016] KEELRC 1745 (KLR)

Employment and Labour Relations Court
20 January 2016
MMM. Mbaru
1,205 words in judgment
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The bottom line

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A Kenyan court dismissed a six-year-old police dismissal claim because only formal conciliation under the Labour Relations Act stops the three-year employment claim clock from running.

What this practically means

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Executive summary

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The 2nd and 3rd respondents raised a preliminary objection that the Claimant's suit, arising from his dismissal from the police on 4th October 2008 and filed on 20th March 2015, was time barred under section 90 of the Employment Act, section 3(2) of the Public Authorities Limitation Act and the Limitation of Actions Act, and was an abuse of process. The Claimant, a former police corporal, responded that he had persistently sought review of the dismissal, appealed, and pursued reinstatement and alternative dispute resolution with the 1st Respondent under article 159 of the Constitution, relying on the Kenya Union of Commercial Food case for the proposition that conciliation tolls limitation. The court accepted that formal conciliation under the Labour Relations Act can stop time running, but only where the process is commenced with a report to the Minister and concludes with a Certificate of agreement or disagreement. The Claimant's letters and appeals did not amount to such a process, and it could not be assumed the respondents were participating in conciliation. Section 90 was held to be stated in mandatory terms, and section 62(3) of the Labour Relations Act requires dismissal disputes to be reported to the Minister within ninety days. With a lapse of over six years that no legal process could explain, the court found the claim time barred, allowed the preliminary objections, dismissed the suit, and ordered each party to bear their own costs.

Key legal issues

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01

Effect of conciliation and ADR on limitation under section 90 of the Employment Act

Holding

Conciliation stops time running only where a formal conciliation process under the Labour Relations Act was commenced with a report to the Minister and a Certificate issued; informal letters and appeals to the employer do not extend time

Reasoning

The court agreed with the Kenya Union of Commercial Food case only to the extent that formal conciliation under the Labour Relations Act tolls limitation. The Claimant merely exchanged letters with the 1st Respondent seeking reinstatement and pursued appeals; there was no statutory conciliation with a report to the Minister or Certificate of agreement/disagreement. Parties must be aware of the process in motion, and the Claimant could not assume the respondents were engaged in conciliation.

p. 2
02

Whether the suit was time barred

Holding

Yes - the cause of action arose on 4th October 2008 and the suit was filed on 20th March 2015, a lapse of over six years that no legal process could excuse

Reasoning

The court found the claim subject to the mandatory three-year limitation in section 90 of the Employment Act and section 62(3) of the Labour Relations Act requiring dismissal disputes to be reported to the Minister within ninety days. The intervening engagement between the parties did not constitute a recognised mechanism to stop time, so the claim was statute-barred and the preliminary objection succeeded.

p. 3

Legal principles established

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  • Section 90 of the Employment Act, 2007 is a mandatory limitation provision requiring employment claims to be filed within three years of the cause of action
  • Informal negotiations or ADR do not stop limitation time running; only a formal conciliation under Part VIII of the Labour Relations Act, commenced with a report to the Minister and concluded by a Certificate, can affect when time runs

Court orders

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  1. 1.The preliminary objections by the 2nd and 3rd respondents are allowed
  2. 2.The suit is dismissed for being time barred
  3. 3.Each party shall bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90) and Labour Relations Act

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, "Andrew N. Arisa v National Police Service Commission & 2 others [2016] KEELRC 1745 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1745/eng@2016-01-20

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