Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutCause No 45 of 2019· [2020] KEELRC 135 (KLR)

Tobias Omenda Andhala v Kenya Union of Domestic, Hotels,Educational Institutions & Hospital Workers [2020] KEELRC 135 (KLR)

Employment and Labour Relations Court
4 December 2020
RSRadido Stephen
1,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out a union member's claim against his union because waiting for conciliation did not pause the three-year deadline to sue.

What this practically means

#

Executive summary

#
The Claimant sued the Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers (KUDHEIHA) in May 2019 for general damages for professional negligence, alleging the Union failed to represent him in an unfair termination claim arising from his 30 December 2007 dismissal by the Board of Management of Oyugis Secondary School. The Union raised a Notice of Preliminary Objection arguing, among other grounds, that the claim was time-barred and that limitation under section 90 of the Employment Act does not apply to the conciliation process under the Labour Relations Act. The Court identified two issues: whether conciliation stops limitation time from running, and whether the relationship between the Claimant and the Union was contractual and subject to section 90 of the Employment Act. On the first, the Court held that binding Court of Appeal authority (Attorney General v Andrew Maina Githinji, relying on Rift Valley Railways v Musonye) establishes that time does not stop running during conciliation or other alternative dispute resolution processes. On the second, the Court held that section 90 applies only to causes of action arising out of a contract of service, which did not exist between the Claimant and the Union; rather, the claim against the Union lay in tort and agency, namely breach of the duty of fair representation, attracting the 3-year limitation under section 4(2) of the Limitation of Actions Act. Taking the grievance reported to the Union on 23 January 2008 as the accrual date, the Claimant should have sued by 23 January 2011 but filed in 2019 without seeking leave. The Court upheld the Preliminary Objection, struck out the Memorandum of Claim, and made no order on costs. Judgment delivered by Radido Stephen, Judge, on 4 December 2020 through Microsoft Teams.

Key legal issues

#
01

Whether conciliation under the Labour Relations Act suspends the limitation period

Holding

No; time continues to run during conciliation and out-of-court dispute resolution

Reasoning

The Court of Appeal in Attorney General v Andrew Maina Githinji, binding on this Court, held that time does not stop running upon commencement of conciliation or other ADR mechanisms under the Constitution or any other law. This was fortified by Rift Valley Railways v Hawkins Wagunza Musonye. Therefore the Union's reliance on conciliation to defer accrual of limitation failed.

p. 2
02

Whether section 90 of the Employment Act applies to a claim against a trade union for failure to represent a member

Holding

No; the claim is in tort and agency, not a cause of action arising out of a contract of service

Reasoning

Section 90 of the Employment Act envisages a cause of action arising out of a contract of service. There was no contract of service between the Claimant and the Union; the contract of service was between the Claimant and the Board of Management of Oyugis Secondary School. A claim for negligent or unfair representation by a trade union lies in negligence, as affirmed comparatively in Food and Allied Workers Union (South Africa).

p. 2
03

The applicable limitation period for a tortious claim for breach of duty of fair representation

Holding

Three years under section 4(2) of the Limitation of Actions Act, subject to extensions under sections 26, 27 and 28

Reasoning

Having found the cause of action sounded in tort, the Court applied section 4(2) of the Limitation of Actions Act. Taking the grievance reported to the Union on 23 January 2008 as the accrual date, the claim should have been filed by 23 January 2011. The Claimant filed in 2019 without seeking leave for extension, so the claim was time-barred.

p. 2

Legal principles established

#
  • Time does not stop running on the commencement of conciliation or other alternative dispute resolution mechanisms provided for under the Constitution or any other law
  • A claim for breach of the duty of fair representation by a trade union lies in tort (negligence), not under a contract of service, and is governed by section 4(2) of the Limitation of Actions Act

Court orders

#
  1. 1.The Preliminary Objection is upheld and the Memorandum of Claim is struck out
  2. 2.There will be no order on costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Employment Act, 2007section 90
  • Labour Relations Act, 2007sections 62, 65, 69, 73
  • Labour Relations Act, 2007section 62(3)
  • Employment and Industrial Relations Actsection 15
  • Limitation of Actions Actsection 4(2), sections 26, 27 and 28

Cases cited (9)

  • KUDHEIHA v Njabini Secondary School
    Nairobi Cause No. 846 of 2009
  • KUDHEIHA v Marsh Park Hotel
    Kisumu Cause No. 85 of 2013
  • Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Ltd
    (2015) eKLR
  • Banking Insurance & Finance Union (K) v Bank of India
    (2014) eKLR
  • Kenya Scientific Research International Technical and Allied Workers Union v Rainald Schuvera
    (2012) eKLR
  • Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base
    (2013) eKLR
  • Attorney General & another v Andrew Maina Githinji & Ar
    (2016) eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye and another
    (2016) eKLR
  • Food and Allied Workers Union Ngcobo N.O & Ar
    (2014) 1 SA 32 (CC)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act over employment and labour disputes

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tobias Omenda Andhala v Kenya Union of Domestic, Hotels,Educational Institutions & Hospital Workers [2020] KEELRC 135 (KLR)", Case Analysis (2020). Cause No 45 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/135/eng@2020-12-04

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