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ELRCStruck OutNot stated in extract· [2019] KEELRC 2169 (KLR)

Solomon Asenaka v Chairman, Board of Governors Senende High School [2019] KEELRC 2169 (KLR)

Employment and Labour Relations Court
21 February 2019
MOMAUREEN ONYANGOMNMATHEWS NDERI NDUMA
1,318 words in judgment
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The bottom line

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A Kenyan court struck out an employment claim filed over three years after dismissal, confirming that out-of-court negotiations do not pause the legal deadline for suing.

What this practically means

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Executive summary

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The respondent filed a preliminary objection dated 21st July 2017 contending that the claimant's suit, filed on 2nd September 2015, was statute barred under Section 90 of the Employment Act 2007 because the claimant was dismissed on 22nd May 2010, more than three years earlier. The respondent relied on authority that limitation goes to jurisdiction. The claimant opposed, attributing the delay to negotiations with the respondent, including a demand letter of 6th August 2012, the respondent's without prejudice reply of 11th September 2012 inviting quantification of gratuity, and the claimant's counter of 11th November 2012, urging that time only began running when negotiations failed. The court held that out-of-court negotiations and ADR do not suspend the limitation period, following G4S Security Services v Joseph Kamau, Rift Valley Railways v Musonye, Times Newspapers v O'Regan and Radido J's decision in Kenya Electrical Trades & Allied Workers Union. On the without prejudice correspondence, applying Mumias Sugar, Walker v Wilsher and Lochab Transport, the court found the 11th September 2012 letter was an invitation to offer and the claimant's 11th November 2012 letter a counter-offer never accepted; no contract formed, so time was not arrested. The claim was therefore struck out as statute barred, with each party bearing its own costs. The judgment was signed at Nairobi on 12th February 2019 and delivered at Kisumu on 21st February 2019.

Key legal issues

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01

Limitation under Section 90 of the Employment Act 2007

Holding

The claim, filed 2nd September 2015 over a dismissal of 22nd May 2010, is statute barred; the three-year period runs from termination.

Reasoning

Section 90 allows three years from the date the cause of action accrues. Dismissal occurred on 22nd May 2010 and suit was filed on 2nd September 2015. Correspondence between the parties ended on 11th November 2012 and none occurred after that until suit, so nothing extended or suspended the period. Limitation goes to jurisdiction.

p. 2
02

Effect of out-of-court negotiations on limitation

Holding

Negotiations do not stop time running; ADR must occur within the statutory period.

Reasoning

The court adopted the Court of Appeal decision in G4S Security Services and Rift Valley Railways, holding that ADR is encouraged but must be court-based and within the law. Any conciliation or negotiation must be conducted within the three-year window, otherwise the claim goes stale.

p. 2
03

Without prejudice communication as admission or offer

Holding

The respondent's 11th September 2012 letter was an invitation to offer; the claimant's 11th November 2012 reply was a counter-offer never accepted, so no contract formed and the letter cannot be construed against the writer.

Reasoning

The without prejudice rule is not absolute but applies here. Had the respondent accepted the counter-offer, a contract would have been formed and time would have run from acceptance. No evidence of acceptance existed, and no correspondence followed the November 2012 letter, so the limitation period was unaffected.

p. 2

Legal principles established

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  • Out-of-court negotiations and alternative dispute resolution do not suspend the three-year limitation period under Section 90 of the Employment Act.
  • Without prejudice communications are generally inadmissible as admissions of liability unless accepted, in which case a contract is formed.

Court orders

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  1. 1.Preliminary objection succeeds on grounds of limitation
  2. 2.The claim is struck out
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment and Labour Relations ActSection 15
  • Employment and Labour Relations Court Actprincipal objective

Cases cited (10)

  • Fred Mudave Gogo –V- G4s Security Services (K) Limited
    (2014) eKLR
  • Gathoni –V- Co-Operative Creameries Limited
    (1982) eKLR
  • Owners of Motor Vessel ‘Lilian S’ –V- Caltex Oil (Kenya) Limited
  • G4S Security Services (K) Limited v Joseph Kamau & 468 Others
    [2018] eKLR
  • Rift Valley Railways (Kenya) Ltd V Hawkins Wagunza Musonye and another
    [2016] eKLR
  • Times Newspapers Ltd v O’Regan
    [1977] I.R.L.R 101
  • Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Ltd
    [2015] eKLR
  • Mumias Sugar Co. Ltd & another v Beatrice Akinyi Omondi
    [2016] eKLR
  • Walker V Wilsher
    (1889) 23 QBD 335
  • Lochab Transport Ltd Vs Kenya Arab Orient Insurance Ltd
    [1986] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Section 90) and the Employment and Labour Relations Court Act

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, "Solomon Asenaka v Chairman, Board of Governors Senende High School [2019] KEELRC 2169 (KLR)", Case Analysis (2019). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2169/eng@2019-02-21

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