Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Embakasi Girls Secondary School [2018] KEELRC 671 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether conciliation suspends the limitation period under section 90 of the Employment Act
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.
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.
Whether the Court has discretion to extend limitation time for contract-based employment claims
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.
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.
Whether the preliminary objection on time bar and abuse of process should succeed
The Court treated the preliminary objection as grounds of opposition and found no merit in the Union's application, dismissing it.
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.
Legal principles established
#- 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
#- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.