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ELRCPartially AllowedCause No 1260 of 2018· [2019] KEELRC 1150 (KLR)

Kenya Hotels & Allied Workers Union v Julian’s Centre Ack [2019] KEELRC 1150 (KLR)

Employment & Labour Relations Court
5 July 2019
MOMAUREEN ONYANGO
1,532 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employment claims must be filed within three years of termination—conciliation does not pause that deadline, so waiting means losing your case entirely.

What this practically means

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Executive summary

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The Respondent, St. Julian's Centre ACK, brought a Notice of Motion dated 27th November 2018 under section 90 of the Employment Act and Rule 17 of the ELRC (Procedure) Rules 2016 seeking striking out of a Memorandum of Claim filed by the Kenya Hotels and Allied Workers Union on behalf of grievant Simon Mungai, a cook allegedly terminated on 16th August 2013. The Respondent argued the suit, instituted on 27th July 2018, was nearly five years late and therefore statute barred. The Claimant countered that proceedings commenced when it invoked section 62 of the Labour Relations Act by letter dated 18th March 2014, prompting the appointment of a conciliator, and that time stopped running once labour relations machinery was engaged; striking out would prejudice the grievant's right to fair labour practice. The court framed a single issue: whether the claim was time barred and should be struck out. Relying on the timelines in sections 65, 67 and 69 of the Labour Relations Act, Maureen Onyango J held that conciliation takes only about 30 days and cannot be interpreted to extend the three-year limitation period in section 90, which binds all employment disputes. The application succeeded; the claim was struck out for being statute barred, the court lacking jurisdiction, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the claim filed on 27th July 2018 for termination effected on 16th August 2013 is time barred under section 90 of the Employment Act

Holding

Yes - the claim was filed close to five years after termination, far beyond the three-year limitation period, and must be struck out

Reasoning

Section 90 of the Employment Act requires civil actions arising from the Act or a contract of service to be commenced within three years of the act, neglect or default complained of. The grievant was terminated on 16th August 2013 and the suit was instituted on 27th July 2018, nearly five years later. The limitation provision is binding in all employment disputes and the court lacks jurisdiction to hear the claim.

p. 3
02

Whether initiation of conciliation under the Labour Relations Act stops the running of the limitation period

Holding

No - conciliation is designed to take only about 30 days and cannot be interpreted to extend the statutory limitation period

Reasoning

The court reviewed sections 65(1), 67(1) and 69 of the Labour Relations Act, which provide clear timelines: a conciliator must be appointed within 21 days and must attempt resolution within 30 days or an agreed extended period. Because the conciliation process is of short, defined duration, it cannot be interpreted to extend the three-year limitation under section 90 of the Employment Act, which binds all employment disputes.

p. 3

Legal principles established

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  • A claim based on the Employment Act or a contract of service must be commenced within three years of the act complained of; the court has no jurisdiction over time-barred employment claims
  • The conciliation process under the Labour Relations Act cannot extend the three-year limitation period under section 90 of the Employment Act

Court orders

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  1. 1.The Respondent's Notice of Motion dated 27th November 2018 succeeds
  2. 2.The Memorandum of Claim is struck out for being statute barred
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 87
  • Employment & Labour Relations Court (Procedure) Rules 2016Rule 17
  • Labour Relations Actsection 62
  • Labour Relations Actsections 65(1), 67(1) and 69
  • Labour Relations Actsections 62 and 73
  • Limitation of Actions Act (Cap 22)section 4(1); sections 27 and 28
  • Trade Disputes Act (repealed)null

Cases cited (9)

  • Attorney General and Another -V- Andrew Maina Githinji and Another
    Civil Appeal No. 21 of 2015
  • Thuranira Karauri –v- Agnes Ncheche
    [1997] eKLR
  • G4S Security Services (K) Limited –v- Joseph Kamau & 468 Others
    [2018] eKLR
  • Peter Nyamai & 7 others –v- M.J. Clarke Limited
    [2013] eKLR
  • Kenya Union of Employees of voluntary and charitable organisations (KUEVACO) –v- Redeemed Gospel Church
    [2017] eKLR
  • Benjamin Wachira Ndethi –v- Public Service Commission and Another
    [2014] eKLR
  • Divecon Limited –v- Samani
    [1995-1998] 1 EA page 48
  • Josephat Ndirangu v Henkel Chemicals (EA) Limited
    [2013] eKLR
  • Office Restaurant –v- Kenya Hotels & Allied Workers Union
    Civil Appeal No. 44 of 2014
Jurisdiction invoked
Section 90 of the Employment Act No. 11 of 2007 and Rule 17 of the Employment & Labour Relations Court (Procedure) Rules 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kenya Hotels & Allied Workers Union v Julian’s Centre Ack [2019] KEELRC 1150 (KLR)", Case Analysis (2019). Cause No 1260 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1150/eng@2019-07-05

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