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ELRCDismissedCause No 386 of 2014· [2016] KEELRC 1787 (KLR)

Muiru Mwangi Muita v Greenpark Water Services Ltd [2016] KEELRC 1787 (KLR)

Employment and Labour Relations Court
29 January 2016
RSRadido Stephen
1,856 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 confirmed it cannot extend the 3-year deadline for unfair termination claims, and conciliation does not pause that clock.

What this practically means

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Executive summary

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The Claimant sued on 22 August 2014 alleging unfair termination of employment on 10 October 2008 while earning a monthly salary of Kshs 5,400/=. The Respondent filed a preliminary objection contending the claim was statute barred under section 90 of the Employment Act, 2007, having been filed more than three years after termination, and that the dispute was reported to the Cabinet Secretary under section 62(3) of the Labour Relations Act only on 30 November 2012, far outside the 90-day period. The Claimant opposed, arguing the objection required ascertaining facts, that the Cabinet Secretary could accept late reports, that conciliation barred resort to court before a certificate of disagreement, and that time stopped running during conciliation. The court framed two questions: whether time could be extended for contractual employment claims, and whether time stops running during conciliation. Following Divecon Ltd v Samani, the court held that no court has power to extend time in contractual claims, that the limitation period in employment claims is now three years, and that limitation is jurisdictional rather than a procedural technicality curable under Article 159. On conciliation, the court held that the express suspension provision in the repealed Trade Disputes Act was not retained in the Labour Relations Act, that sections 23 and 26 of the Limitation of Actions Act do not cover unfair termination claims, and that time does not stop running during conciliation. The claim was dismissed with no order as to costs.

Key legal issues

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01

Whether courts can extend time to file employment (contractual) claims

Holding

No; sections 27 and 28 of the Limitation of Actions Act confer no extension power in contractual causes of action, and Divecon Ltd v Samani remains good law.

Reasoning

The court adopted the Court of Appeal's holding in Divecon Ltd v Samani that no court may entertain an action in contract filed outside the limitation period or extend such time. In employment claims the prescribed period is now 3 years under section 90 of the Employment Act, and sections 27 and 28 of the Limitation of Actions Act do not apply to actions based on contract.

p. 2
02

Whether limitation is jurisdictional or a procedural technicality

Holding

Limitation is jurisdictional and cannot be salvaged by Article 159 of the Constitution.

Reasoning

Because no court has power to entertain a time-barred contractual claim, limitation goes to jurisdiction rather than mere procedure. A party may only escape limitation by demonstrating a contract not to plead limitation or estoppel under section 39 of the Limitation of Actions Act.

p. 1
03

Whether conciliation suspends the running of limitation time

Holding

It does not under the Employment Act, 2007 and Labour Relations Act; the express provision in the repealed Trade Disputes Act was not retained.

Reasoning

Section 14(9)(c) of the repealed Trade Disputes Act had barred the Industrial Court from taking cognisance of disputes under conciliation, but that provision was not carried into the Labour Relations Act. Sections 23 and 26 of the Limitation of Actions Act do not cover unfair termination claims, and the parties never mutually extended the 30-day conciliation period under section 69.

p. 3

Legal principles established

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  • No court has power to extend time or grant leave to commence legal action in contractual claims outside the prescribed limitation timelines.
  • Limitation in employment claims is a jurisdictional question, not a procedural technicality curable under Article 159 of the Constitution.
  • Time does not stop running when an employment dispute is under conciliation under the current statutory framework.

Court orders

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  1. 1.The Claimant's cause of action filed on 22 August 2014 is declared incompetent and statute barred
  2. 2.The claim is dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment Actsection 90
  • Labour Relations Actsection 62(3) and section 62(3)(b)
  • Labour Relations Actsection 69
  • Limitation of Actions Actsection 4(1); Part III; sections 23, 26, 27, 28 and 39
  • Trade Disputes Act (repealed)section 14(9)(c)
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Divecon Ltd v Samani
    (1995-1998) 1 EA 48
  • Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Co. Ltd
    (2015) eKLR
  • Inco Beverages Ltd v Class W, Brans & Ors
    (1990-1993) Vol 4 N5C 123
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Relations Act (specific constitutional/statutory article not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muiru Mwangi Muita v Greenpark Water Services Ltd [2016] KEELRC 1787 (KLR)", Case Analysis (2016). Cause No 386 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1787/eng@2016-01-29

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