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ELRCStruck OutNot stated in judgment extract· [2017] KEELRC 1717 (KLR)

Kenya Union of Commercial Food and Allied Workers v Anchor East Africa Limited [2017] KEELRC 1717 (KLR)

Employment and Labour Relations Court
24 February 2017
LNLINNET NDOLO
560 words in judgment
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The bottom line

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Kenya's Employment Court struck out a claim filed years late, confirming it has no power to extend the three-year filing deadline for employment claims.

What this practically means

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Executive summary

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This ELRC ruling at Nairobi, delivered by Linnet Ndolo, Judge, on 24th February 2017, determined a preliminary objection raised by the Respondent in its Memorandum of Response dated 26th February 2015, contending that the Claimant's claim was statute barred under Section 90 of the Employment Act, 2007. The parties agreed to dispose of the objection by written submissions, but only the Respondent filed submissions, citing the classic definition of a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. The Respondent argued that the cause of action accrued in 2009 and the claim filed in 2014 was out of time. The court accepted the Claimant's position that the dispute had been referred to conciliation, with a certificate of unresolved dispute issued on 15th February 2010, and, following Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base and Pauline Waithira Muraguri v Murang'a Farmers Co-Operative Union Ltd, held that time began to run on that date. The claim should therefore have been filed by 14th February 2013. Since limitation is a matter of jurisdiction (Thuranira Karauri v Agnes Ncheche) and the Court has no jurisdiction to extend time under the Employment Act (Maria Machocho and George Hiram Ndirangu), the claim filed on 11th November 2014 was struck out with no order for costs.

Key legal issues

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01

Whether the claim was time barred under Section 90 of the Employment Act

Holding

Yes. Time ran from 15th February 2010 when conciliation ended, so the claim ought to have been filed by 14th February 2013; the claim of 11th November 2014 was out of time.

Reasoning

Section 90 requires employment claims to be commenced within three years of the act, neglect or default. The cause of action arose in 2009 and the dispute went to conciliation, ending with a certificate of unresolved dispute on 15th February 2010. Following precedent, time began to run on that date, expiring on 14th February 2013. The claim filed on 11th November 2014 was therefore statute barred.

p. 2
02

Whether the Court could extend time

Holding

No. The Court has no jurisdiction to extend time for claims under the Employment Act, 2007.

Reasoning

Relying on existing ELRC jurisprudence (Maria Machocho v Total Kenya Limited and George Hiram Ndirangu v Equity Bank), the court held that it lacks jurisdiction to extend the limitation period prescribed by Section 90. Since limitation is a matter of jurisdiction, the only available remedy was to strike out the claim.

p. 2

Legal principles established

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  • Limitation of actions is a matter of jurisdiction
  • The Employment and Labour Relations Court has no jurisdiction to extend time for filing claims falling under the Employment Act, 2007
  • Where a dispute is referred to conciliation, limitation time begins to run when the conciliation process ends (certificate of unresolved dispute issued)

Court orders

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  1. 1.The Claimant's claim is struck out with no order for costs

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Limitation of Actions ActSection 4(1)

Cases cited (6)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] E.A 696
  • Thuranira Karauri v Agnes Ncheche
    [1997] eKLR
  • Maria Machocho v Total Kenya Limited
    [2013] eKLR
  • George Hiram Ndirangu v Equity Bank
    [2015] eKLR
  • Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base
    [2013] eKLR
  • Pauline Waithira Muraguri v Murang’a Farmers Co-Operative Union Ltd
    [2014] eKLR
Jurisdiction invoked
Employment Act, 2007, Section 90 (limitation); Employment and Labour Relations Court 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 Union of Commercial Food and Allied Workers v Anchor East Africa Limited [2017] KEELRC 1717 (KLR)", Case Analysis (2017). Not stated in judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1717/eng@2017-02-24

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