Kenya County Government Workers Union v Nairobi Water and Sewerage Company Limited [2017] KEELRC 1793 (KLR)

Employment and Labour Relations Court

10 February 2017

LNLINNET NDOLO

410 words in judgment

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The bottom line

In Kenya, the clock on an employment claim pauses while the dispute is in conciliation, so the claim was filed in time.

What this practically means

Executive summary

This ruling by the Employment and Labour Relations Court at Nairobi (Linnet Ndolo, J) determined a preliminary objection raised by the Respondent that the Claimant's claim, filed on 20th August 2013, was statute barred because the cause of action arose at least seven years earlier. The Respondent relied on Section 4(1) of the Limitation of Actions Act and Section 90 of the Employment Act, 2007, and on Thuranira Karauri v Agnes Ncheche for the position that limitation goes to the jurisdiction of the court. The Claimant countered that the dispute was first subjected to the Respondent's internal appeal mechanism and then referred to conciliation in November 2012, with the Conciliator issuing a certificate of non-resolution on 24th April 2013; reliance was placed on Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base and Pauline Waithira Muraguri v Murang'a Farmers Co-Operative Union Ltd for the proposition that invoking the Labour Relations Act dispute resolution mechanism stops time from running until the conciliation process concludes. The court agreed that a cause of action from a referred dispute accrues only upon formal withdrawal from conciliation or the Conciliator's final word. Since the certificate issued on 24th April 2013 and the claim was filed the same year, the claim was within time. The preliminary objection was overruled with costs in the cause.

Key legal issues

Whether the claim was statute barred

Holding

The claim was filed within time because limitation did not begin to run until the certificate of non-resolution of the dispute was issued on 24th April 2013

Reasoning

The Respondent objected that the cause of action arose at least seven years before the claim filed on 20th August 2013, invoking Section 4(1) of the Limitation of Actions Act and Section 90 of the Employment Act, relying on Thuranira Karauri v Agnes Ncheche that limitation goes to jurisdiction. The Claimant showed the dispute went through internal mechanisms and conciliation, ending in a certificate of non-resolution on 24th April 2013. The court adopted the line of authority holding that invoking statutory dispute resolution stops time running until conciliation concludes, so a claim filed the same year was in time.

p. 2

Effect of conciliation on accrual of the cause of action

Holding

Time does not run while a dispute is pending before a Conciliator under the Labour Relations Act; it accrues only on withdrawal or final outcome

Reasoning

Following Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base and Pauline Waithira Muraguri v Murang'a Farmers Co-Operative Union Ltd, the court held that once a party invokes the dispute resolution mechanism under the Labour Relations Act, time stops running until the final outcome of conciliation. Since the Conciliator issued the certificate of non-resolution on 24th April 2013 and the claim was filed the same year, the claim was not caught by limitation and the preliminary objection failed.

p. 2

Legal principles established

A cause of action arising from a dispute referred to conciliation does not accrue until the parties formally withdraw from conciliation or the Conciliator issues a final outcome

Court orders

1.The preliminary objection is overruled
2.Costs in the cause

Authorities

Legislation

Limitation of Actions ActSection 4(1)
Employment Act, 2007Section 90
Labour Relations ActNot specified (dispute resolution/conciliation mechanism)

Cases cited (3)

Thuranira Karauri v Agnes Ncheche
[1997] 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 and Labour Relations Court jurisdiction (statutory basis not expressly cited in the ruling)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kenya County Government Workers Union v Nairobi Water and Sewerage Company Limited [2017] KEELRC 1793 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1793/eng@2017-02-10

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