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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 2268 (KLR)

John Kamau Wangari, Isaac Macharia & Peter Wachira v Nacico Co-operative Savings & Credit Society Ltd [2019] KEELRC 2268 (KLR)

Employment and Labour Relations Court
15 February 2019
RSRadido Stephen
579 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Act time limit does not apply to dismissals before 2008, but you cannot sue for a deceased person without letters of administration.

What this practically means

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Executive summary

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This was a ruling on a Notice of Preliminary Objection filed on 16 January 2017 by the Respondent in an Employment and Labour Relations Court claim by union members dismissed on 3 May 2007. The Respondent argued that any cause of action was time barred under Section 90 of the Employment Act, that the Claimants therefore lacked capacity and the suit was an abuse of process, and that the third Claimant, Isaac Macharia, being deceased, no claim could be brought in his name; it sought striking out with costs. The Claimants opposed, explaining that their union reported a trade dispute to the Minister for Labour, who appointed an Investigator whose report was released only on 13 May 2014 after being compelled through court action, whereupon they filed suit. The Court (Radido J) held that the Employment Act, 2007 commenced on 2 June 2008 and contains no retrospective application, so it does not govern a 2007 cause of action. At the material time the applicable statute was the Trade Disputes Act (repealed), under which only the Minister could refer disputes to the Court, and the fifth schedule to the Labour Relations Act reserved pre-2008 trade dispute resolution to that regime. The Court further found the Trade Disputes Act created a sui generis dispute resolution regime not subject to the Limitation of Actions Act. However, because Isaac Macharia was deceased and no letters of administration had been taken out, his name was struck out. The preliminary objection was otherwise dismissed with no order as to costs, delivered in Nairobi on 15 February 2019.

Key legal issues

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01

Whether Section 90 of the Employment Act, 2007 bars a claim for summary dismissal occurring on 3 May 2007

Holding

No. The Employment Act, 2007 commenced on 2 June 2008, is not retrospective, and does not apply to the 2007 cause of action.

Reasoning

The cause of action arose before the Employment Act came into force. Statutes are presumed not to operate retrospectively unless expressly provided. The fifth schedule to the Labour Relations Act preserved the resolution of pre-2008 trade disputes, including summary dismissal, under the repealed Trade Disputes Act, whose sui generis regime was not subject to the Limitation of Actions Act.

p. 2
02

Whether a claim can be maintained on behalf of a deceased Claimant without letters of administration

Holding

No. The name of the deceased third Claimant, Isaac Macharia, is struck out.

Reasoning

The Statement of Claim admitted the third Claimant was deceased, but no date of decease was indicated and no letters of administration had been taken out. A suit cannot be instituted in a deceased person's name or on his behalf without such representation, so the only competent order was to strike out his name.

p. 2

Legal principles established

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  • The Employment Act, 2007 does not apply retrospectively to causes of action arising before its commencement on 2 June 2008
  • Pre-2008 trade disputes, including summary dismissal, were reserved to the repealed Trade Disputes Act regime by the fifth schedule to the Labour Relations Act
  • The Trade Disputes Act created a sui generis dispute resolution regime not subject to the Limitation of Actions Act
  • No suit can be instituted in the name of or on behalf of a deceased person before taking out letters of administration

Court orders

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  1. 1.The name of Isaac Macharia (third Claimant, deceased) is struck out from the Claim
  2. 2.The Notice of Preliminary Objection is dismissed with no order as to costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment Act, 2007Commencement (2 June 2008)
  • Trade Disputes Act (repealed)General
  • Labour Relations ActFifth Schedule
  • Limitation of Actions ActGeneral
Jurisdiction invoked
Original employment and labour relations jurisdiction (Labour Relations Act); not stated by specific provision in the judgment

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, "John Kamau Wangari, Isaac Macharia & Peter Wachira v Nacico Co-operative Savings & Credit Society Ltd [2019] KEELRC 2268 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2268/eng@2019-02-15

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