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ELRCStruck OutNot stated in the judgment as provided· [2020] KEELRC 786 (KLR)

Kenya County Government Workers Union v Kiambu County Government & another [2020] KEELRC 786 (KLR)

Employment and Labour Relations Court of Kenya
26 June 2020
7,016 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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The Employment Court struck out a union claim filed 15 years late, confirming that talking and conciliating never pause Kenyan limitation deadlines.

What this practically means

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Executive summary

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The claimant union, formerly the Kenya Local Government Workers Union, sued the County Government of Kiambu and the County Public Service Board on behalf of six grievants formerly employed by the defunct Kiambu County Council, who were retired on 31st December 2000 upon notice dated 15th June 2000. The union alleged the grievants were retired at 54 instead of the mandatory retirement age of 55 under the applicable Collective Bargaining Agreement, contrary to an advisory letter from the Permanent Secretary, Ministry of Local Government dated 11th September 2000, and sought declarations, maximum compensation under Section 49(1)(c) of the Employment Act, pecuniary loss, six months' pay in lieu of notice, certificates of service, interest and costs. The respondents maintained that the retirement complied with the CBA, that terminal dues were paid, that the Employment Act 2007 did not apply retroactively, and that the claim was time barred. Only the claimant called evidence (CW1, Naomi Wanjiku Mbae). The court, Maureen Onyango J, held that limitation is a jurisdictional question she was bound to address notwithstanding an earlier ruling of 17th June 2016, since she now had the full facts. Guided by binding Court of Appeal authority including G4S Security Services and Rift Valley Railways, she held that the dispute was reported far outside the 28-day limit under the repealed Trade Disputes Act and the 90-day limit under Section 62(3) of the Labour Relations Act, that conciliation does not stop time running, and that no court may extend a statutory limitation period. The claim, filed 15 years after retirement, was statute barred under the Trade Disputes Act, Labour Relations Act, Limitation of Actions Act and Employment Act. The court struck out the claim with no orders for costs.

Key legal issues

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01

Whether the claim was statute barred

Holding

The claim filed 15 years after retirement was out of time under the Trade Disputes Act, the Labour Relations Act, the Limitation of Actions Act and the Employment Act.

Reasoning

The grievants were retired on 31st December 2000. Under the Trade Disputes Act termination disputes had to be reported within 28 days, and under Section 62(3) of the Labour Relations Act within 90 days. The informal dispute was reported only on 13th June 2007 and the formal dispute on 27th March 2013, with no evidence the Minister extended time. The Employment Act limits employment claims to three years. The claim filed on 26th March 2015 was therefore hopeless on limitation.

p. 9
02

Whether the court could revisit the earlier ruling on limitation

Holding

Yes; limitation is a question of jurisdiction and the court, now possessed of the full facts after hearing evidence, was bound to deal with it as a preliminary issue.

Reasoning

A preliminary objection on limitation had been determined by a ruling of 17th June 2016 by a differently stationed judge. The court held that jurisdiction is everything; a court cannot make one more step where it lacks jurisdiction. Having now heard the evidence and considered both law and facts not placed before the earlier judge, the court was entitled to revisit the question, following the same approach in George Oppolo v Guaranty Trust Bank.

p. 5
03

Whether conciliation stops time running

Holding

No; conciliation and alternative dispute resolution do not suspend the limitation period.

Reasoning

Relying on binding Court of Appeal authority in G4S Security Services and Rift Valley Railways, and the decision in Kenya Electrical Trades & Allied Workers Union, the court held that the three-year outer limit under Section 90 of the Employment Act applies irrespective of conciliation. The discretion under the Labour Relations Act cannot extend time beyond the statutory limit, and no evidence showed the Minister permitted a longer period.

p. 9

Legal principles established

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  • Limitation goes to jurisdiction and must be addressed as a preliminary issue; without jurisdiction a court must down its tools
  • Time does not stop running merely because parties are engaged in out-of-court negotiations or conciliation
  • Where a statute limits time for bringing an action, no court may extend that time unless the statute itself allows it

Court orders

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  1. 1.The claim is struck out with no orders for costs

Authorities

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Legislation

  • Labour Relations ActSections 62, 62(3), 65(1), 69, 69(a)
  • Trade Disputes Act (repealed)Sections 4, 8, 14(9)
  • Employment ActSections 49(1)(c), 90
  • Limitation of Actions ActSection 4(1)(a)
  • Constitution of Kenya, 2010Sixth Schedule Section 33; Articles 48, 159(2)(d)
  • Urban Areas and Cities Act, 2011Sections 55, 57, 58, 59
  • Employment and Industrial Relations ActSection 15
  • Employment and Labour Relations Court ActSection 15
  • Public Service Commission (Local Authority Officers) Regulations 1984Regulation 18
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Terms and Conditions of Service governing salaried employeesSection 29(1)(a)

Cases cited (8)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited
    1989 eKLR
  • G4S Security Services (K) Limited v Joseph Kamau and 468 Others
    (2018) eKLR
  • Attorney General & another v Andrew Maina Githinji and another
    [2016] eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & Another
    [2016] eKLR
  • Divecon v Samani
    (1995 – 1998) I EA 48
  • George Oppolo v Guaranty Trust Bank of (K) Ltd
    [2020] eKLR
  • Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Ltd
    [2015] eKLR
  • Kenya Local Government Workers Union v Kangundo Town Council
    Nairobi Cause No. 71 of 2009
Jurisdiction invoked
Article 162(2)(a) of the Constitution and the Employment and Labour Relations Court Act (court's jurisdiction considered under Section 90 of the Employment Act and the Limitation of Actions Act)

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, "Kenya County Government Workers Union v Kiambu County Government & another [2020] KEELRC 786 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/786/eng@2020-06-26

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