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ELRCStruck OutNot stated in the judgment excerpt· [2020] KEELRC 1264 (KLR)

Kenya Chemical Workers Union v Rhombus Concrete Ltd [2020] KEELRC 1264 (KLR)

Employment and Labour Relations Court
24 April 2020
552 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that the three-year deadline to sue over dismissal keeps running even while parties are in conciliation.

What this practically means

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Executive summary

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The Kenya Chemical Workers Union sued Rhombus Concrete Ltd on 8 October 2019 alleging unfair termination of employment of four named grievants, all said to have been terminated in August 2016. The Respondent filed a Notice of Preliminary Objection on 31 October 2019 contending that the claim was incurably time-barred under section 90 of the Employment Act, which prescribes a three-year limitation period for disputes arising out of a contract of service, and sought striking out of the claim with costs. The Union responded that delay by the first conciliator appointed under Part VIII of the Labour Relations Act, necessitating appointment of a second conciliator, explained the timing of the suit. The court noted that the second conciliator issued his report on 10 September 2018, which the Union received on 11 September 2018, still leaving about a year within the limitation period, and the Union offered no explanation for waiting until October 2019 to file. Adopting the Court of Appeal's holding in Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye that time does not stop running during out-of-court negotiations or conciliation, the court upheld the preliminary objection, struck out the cause, and made no order on costs.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

The claim was incurably time-barred as it was filed over three years after the August 2016 terminations

Reasoning

Section 90 prescribes a three-year limitation period for disputes arising out of a contract of service. All grievants were dismissed in August 2016, so suit should have been filed by end of August 2019. Although the first conciliator's appointment was recalled for delay and a new conciliator issued a report on 10 September 2018, the Union still had about a year remaining and gave no explanation for waiting until October 2019 to file.

p. 1
02

Effect of conciliation on limitation

Holding

Conciliation does not suspend the running of the limitation period

Reasoning

Relying on the Court of Appeal's decision in Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye, the court held that while alternative dispute resolution is encouraged, it must be court-based and conducted within the law; parties engaging in out-of-court negotiations must still bear section 90 in mind. The claim went stale three years from termination.

p. 1

Legal principles established

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  • Time does not stop running during out-of-court conciliation or negotiation; the three-year limitation under section 90 of the Employment Act continues to run

Court orders

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  1. 1.The Preliminary Objection is upheld and the Cause is struck out
  2. 2.No order on costs

Authorities

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Legislation

  • Employment Act, Cap. 226 (Employment Act, 2007)section 90
  • Labour Relations ActPart VIII
  • Employment and Industrial Relations Actsection 15

Cases cited (1)

  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye and Ar
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act and Labour Relations Act (specific enabling provision not stated 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, "Kenya Chemical Workers Union v Rhombus Concrete Ltd [2020] KEELRC 1264 (KLR)", Case Analysis (2020). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1264/eng@2020-04-24

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