Tobias Okech,Romlus J Okoth,Benson Kariuki,Francis Kiaries,Ezekiel Khalibwe,Paul Mambunda,Samson Indimuli,Ismael Asonge, Nicholas Oloo,Mary Nyambugi & Daniel Maina v Biashara Sawmills Limited (Cause 57 of 2014) [2019] KEELRC 1769 (KLR)
The bottom line
#Eleven former sawmill workers lost their case because they sued six years after dismissal, and waiting through union negotiations did not extend Kenya's legal time limit.
What this practically means
#Executive summary
#Key legal issues
#Limitation of actions in employment claims
Claims founded on contract must be brought within six years; employment terminated in 2004 and suit filed on 17th September 2010 was out of time and time barred
The applicable law was the repealed Employment Act Cap 226 read with section 4 of the Limitation of Actions Act, which bars contract actions after six years. All terminations occurred on or before August 2004, yet the claim was filed in September 2010 with no explanation or leave sought to extend time. The lapse was without justification and rendered the claims time barred.
Effect of time bar on jurisdiction
Time bar is an issue of law touching on jurisdiction and must be addressed even at a late stage; once time barred the court lacks jurisdiction
Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and Samuel Kamau Macharia v Kenya Commercial Bank, the court held that limitation is a jurisdictional issue of law that should be resolved even where not pressed. A court without jurisdiction cannot hear the claims and must down its tools.
Whether negotiations extend limitation
Negotiations do not stop time from running
The Court of Appeal in Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye held that alternative dispute resolution must be court-based and conducted within the law; time does not stop running during out-of-court negotiations. The parties' efforts to negotiate through the union therefore did not extend the limitation period.
10th claimant's employment
The 10th claimant was never an employee of the respondent; her employer was a third party not joined to the suit
The respondent's witness testified under cross-examination that records showed her employment was with Biashara Hardware Molo, a third party. She failed to address this in her evidence or seek to enjoin the third party, so her claims against the respondent were made against the wrong party.
Legal principles established
#- Time does not stop running merely because parties engage in out-of-court negotiations; limitation continues to run
- A time-barred claim deprives the court of jurisdiction, and a court without jurisdiction must down its tools
Court orders
#- 1.The claims are struck out for want of jurisdiction as they are time barred
- 2.Each party to bear own costs
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act, 2011; jurisdiction lost where claims are time barred under the Limitation of Actions Act and the repealed Employment Act Cap 226
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tobias Okech,Romlus J Okoth,Benson Kariuki,Francis Kiaries,Ezekiel Khalibwe,Paul Mambunda,Samson Indimuli,Ismael Asonge, Nicholas Oloo,Mary Nyambugi & Daniel Maina v Biashara Sawmills Limited (Cause 57 of 2014) [2019] KEELRC 1769 (KLR)", Case Analysis (2019). Cause No. 57 of 2014 (Formerly Nairobi Cause No. 1072 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1769/eng@2019-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.