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ELRCStruck OutCause No. 57 of 2014 (Formerly Nairobi Cause No. 1072 of 2010)· [2019] KEELRC 1769 (KLR)

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)

Employment and Labour Relations Court of Kenya
29 April 2019
3,376 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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Eleven former employees of Biashara Sawmills Limited, originally suing through the Kenya Building, Construction, Timber, Furniture and Allied Industries Employees Union under Nairobi Cause No. 1072 of 2010 (transferred to Nakuru as Cause No. 57 of 2014), claimed wrongful dismissal between April and August 2004, alleging underpayment contrary to the Building and Construction Industry wage order, absence of notice, unpaid leave, and non-payment of terminal and severance dues, asserting they were victimised for union membership. They sought notice pay, leave pay, gratuity/severance, underpayments and compensation per claimant. The respondent denied the claims, asserting most claimants were casuals who deserted or left voluntarily, that dues were paid, that the 10th claimant was never its employee, and that the claims were time barred. Three claimants testified; the respondent called its Head of Security. Only the claimants filed submissions. The court, acting on its own initiative, addressed limitation as a jurisdictional issue of law. Applying section 4 of the Limitation of Actions Act and the repealed Employment Act Cap 226, and following Mukisa Biscuit, Samuel Kamau Macharia and Rift Valley Railways v Musonye, it held that employment having terminated on or before August 2004 and suit filed on 17th September 2010, the claims were time barred; union negotiations did not stop time running. Lack of jurisdiction obliged the court to down its tools. It also found the 10th claimant was employed by Biashara Hardware Molo, a third party not joined. The claims were struck out with each party bearing its own costs.

Key legal issues

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01

Limitation of actions in employment claims

Holding

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

Reasoning

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.

p. 7
02

Effect of time bar on jurisdiction

Holding

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

Reasoning

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.

p. 6
03

Whether negotiations extend limitation

Holding

Negotiations do not stop time from running

Reasoning

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.

p. 7
04

10th claimant's employment

Holding

The 10th claimant was never an employee of the respondent; her employer was a third party not joined to the suit

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The claims are struck out for want of jurisdiction as they are time barred
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Limitation of Actions ActCap 226 Laws of Kenya, section 4(1)
  • Employment Act (repealed)Cap 226 Laws of Kenya
  • Employment and Labour Relations Court Actsection 15
  • Employment Actsection 90
  • Building and Construction Industry Order / Building Construction Industry order, 2004Wage order applicable to the Building and Construction sector

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors Ltd
    [1969] EA
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    S.C Application No. 2 of 2012 [2012] eKLR
  • Rift Valley Railways (Kenya) Ltd versus Hawkins Wagunza Musonye and another
    [2016] eKLR
  • Kenya Building, Construction, Timber, Furniture and Allied Industries Employees' Union versus Biashara Master Saw Millers Ltd
    [2004] eKLR
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

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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, "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.