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ELRCStruck OutNot stated in judgment· [2018] KEELRC 1594 (KLR)

Mellen Moraa Maiko v Board of Management, Marani Secondary School [2018] KEELRC 1594 (KLR)

Employment and Labour Relations Court
5 July 2018
MOMaureen OnyangoMNMathews Nderi Nduma
1,053 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 that referring a dispute to conciliation does not pause the three-year deadline for filing employment claims.

What this practically means

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Executive summary

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The respondent filed a notice of preliminary objection on 5th April 2017 arguing that the claimant's suit was time barred and untenable in law. The claimant opposed, contending that the suit had gone through conciliation at the Ministry of Labour and that time could not run concurrently with the conciliation process, relying on the KSRITIWU -v- Rainald Schumcher's decision. The respondent's counsel, relying on Nicodemus Marani -v- Timsales Limited and Fred Mudave Gogo -v- G4S Security Services (K) Limited, submitted that Section 90 of the Employment Act bars suits filed outside three years and that the court had no power to extend time. The court framed two issues: when time started running and whether the claim was time barred. It held that no law suspends limitation during conciliation, and that the KSRITIWU authority was inapplicable because it rested on the repealed Trade Disputes Act and involved trade unions. Since the claimant was last at work on 27th June 2011, limitation lapsed on 26th June 2014, yet the claim was filed on 13th February 2017, more than five years late. Even taking the later date of 7th December 2011 when the union branch reported the dispute, the claim would still be time barred. Following the two authorities relied on by the respondent, the court struck out the claim as statute barred, with no orders for costs.

Key legal issues

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01

Whether referral of a dispute to conciliation suspends the limitation period

Holding

Conciliation does not stop time from running; the KSRITIWU authority was distinguishable as it was decided under the repealed Trade Disputes Act and involved trade unions.

Reasoning

The court held that no statute provides that limitation time does not run during conciliation. The KSRITIWU decision was premised on the repealed Trade Disputes Act, where a dispute reported by a trade union was deemed commenced upon reporting to the Minister, and only trade union disputes were so reported. The present claimant was not a trade union and the claim was not under the repealed Act, so the authority was not relevant.

p. 2
02

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

Holding

The claim was time barred: the cause of action accrued on 27th June 2011, limitation lapsed on 26th June 2014, and the claim was filed on 13th February 2017, more than five years later.

Reasoning

Section 90 provides that no civil action arising out of the Employment Act or a contract of service shall be instituted unless commenced within three years of the act, neglect or default complained of. The claimant was last at work on 27th June 2011 as pleaded, so time ran from that date. Even taking the later date of 7th December 2011 when the union branch reported the dispute, the claim would still be outside the three-year period.

p. 2

Legal principles established

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  • There is no law that suspends the running of limitation time while a dispute is referred to conciliation.
  • Under Section 90 of the Employment Act, no claim based on employment or a contract of service may be instituted after three years from the date the cause of action accrued.

Court orders

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  1. 1.The claim, being statute barred, was struck out
  2. 2.No orders for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment and Labour Relations Court Act, Cap 234B of 2014Section 12
  • Limitation of Actions Act (Cap. 22)Section 4(1)
  • Labour Relations ActSections 62(3) and 67
  • Trade Disputes Act (repealed)Not specified

Cases cited (3)

  • Kenya Scientific Research International Technical and Allied Workers Union -v- Rainald Schumcher's
    [2012] eKLR
  • Nicodemus Marani -v- Timsales Limited
  • Fred Mudave Gogo -v- G4S Security Services (K) Limited
Jurisdiction invoked
Employment and Labour Relations Court Act, Cap 234B of 2014; Employment Act, Section 90

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Mellen Moraa Maiko v Board of Management, Marani Secondary School [2018] KEELRC 1594 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1594/eng@2018-07-05

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