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ELRCDismissed· [2018] KEELRC 671 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Embakasi Girls Secondary School [2018] KEELRC 671 (KLR)

Employment and Labour Relations Court
9 November 2018
838 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers applied on 17 July 2017 for extension of the limitation period and leave to file a Memorandum of Claim on behalf of Jackline Mokua, whose employment was terminated on 12 June 2013, for unfair termination. The Union argued that time did not run while a trade dispute reported to the Cabinet Secretary, Labour on 10 July 2013 was undergoing conciliation. The Attorney General filed a preliminary objection asserting that the suit was time barred under section 90 of the Employment Act, an abuse of process and incompetent. The Court directed that the objection be taken as grounds of opposition and heard oral submissions. Holding that the claim should have been lodged by 11 June 2016, the Court applied the Court of Appeal's decision in Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye, which settled previously inconsistent judicial positions by holding that time does not stop running during out-of-court negotiation or conciliation. Relying also on Divecon v Samani, the Court held it has no jurisdiction to extend time for actions founded on contract. The application was dismissed with no order as to costs, the Court noting that the preliminary objection had been worded as though a suit already existed when the Union had merely sought leave to commence one. Judgment was delivered in Nairobi on 9 November 2018 by Radido Stephen, Judge.

Key legal issues

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01

Whether conciliation suspends the limitation period under section 90 of the Employment Act

Holding

No. Time does not stop running during out-of-court conciliation, per the Court of Appeal in Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye, which this Court is bound to follow.

Reasoning

The Judges of the Employment and Labour Relations Court had taken inconsistent positions on whether limitation is suspended during conciliation. The Court of Appeal resolved the question in Rift Valley Railways v Musonye, holding that although section 15 of the ELRC Act encourages alternative dispute resolution, such resolution must be court-based and conducted within the law. The grievant's termination on 12 June 2013 meant proceedings should have been lodged by 11 June 2016; the trade dispute reported on 10 July 2013 did not arrest time.

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02

Whether the Court has discretion to extend limitation time for contract-based employment claims

Holding

No. Following Divecon v Samani, there is no power to extend time for actions founded on contract; the Limitation of Actions Act provisions allowing extension do not apply to contract claims.

Reasoning

The Court of Appeal in Divecon v Samani held that section 4(1) of the Limitation of Actions Act bars any action founded on contract brought after six years, and that no court may entertain an action or application to extend time outside that period, because Part III of the Act does not apply to contract actions. This Court, being bound, could not grant the leave sought even if time had been suspended.

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03

Whether the preliminary objection on time bar and abuse of process should succeed

Holding

The Court treated the preliminary objection as grounds of opposition and found no merit in the Union's application, dismissing it.

Reasoning

The Respondent's preliminary objection was worded as if a suit were already in existence, whereas the Union had only applied for leave to commence a suit. The Court directed that the objection be taken as grounds of opposition to the application. On the merits, the claim, filed well beyond three years from the 12 June 2013 termination, was stale, so the application was dismissed.

p. 2

Legal principles established

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  • Time does not stop running merely because parties are engaged in out-of-court negotiation or conciliation; the limitation period under section 90 of the Employment Act continues to run
  • The Court has no jurisdiction to grant leave or extend time to file suit in contractual disputes

Court orders

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  1. 1.The Union's application seeking extension of time and leave to file suit out of time was dismissed with no order as to costs

Authorities

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Legislation

  • Employment Actsection 90
  • Labour Relations Actsection 67(1)(a)
  • Employment and Labour Relations Court Actsection 15
  • Limitation of Actions Actsection 4(1); Part III

Cases cited (2)

  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye
    (2016) eKLR
  • Divecon v Samani
    (1995-1998) EA 48
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (noted as section 15 encouraging alternative dispute resolution)

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 Domestic, Hotels, Educational Institutions & Hospital Workers v Embakasi Girls Secondary School [2018] KEELRC 671 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/671/eng@2018-11-09

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