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ELRCStruck OutNot stated in the extract· [2020] KEELRC 1691 (KLR)

Kennedy Muriuki Ndwiga v Kenya Credit Traders Limited [2020] KEELRC 1691 (KLR)

Employment and Labour Relations Court
6 February 2020
MMM. Mbaru
789 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a first-instance employment claim heard at the Employment and Labour Relations Court in Nakuru before M. Mbaru J. The claimant testified and closed his case on 19th November, 2019, when the court directed both parties to address the applicability of section 90 of the Employment Act, 2007, given that the claimant's employment ended on 16th July, 2010 and the Memorandum of Claim was filed on 16th December, 2014, more than three years after the cause of action arose. The claimant argued that limitation was suspended because the union and the Minister engaged in negotiations under section 62 of the Labour Relations Act; a conciliator issued a report and certificate on 5th February, 2013 recommending that suit be filed, and reliance was placed on Hawkins Wagunza Musonye v Rift Valley Railways, Kenya Plantation & Agricultural Workers Union v Mununga Leaf Base and G4S Security Services v Joseph Kamau. The respondents countered that section 90 is mandatory, time is not a mere technicality, parties cannot consent to extend limitation, and the claimant took a whole year after the conciliation certificate to file suit. The court, following the Court of Appeal in G4S and Rift Valley Railways v Hawkins Wagunza Musonye, held that time does not stop running on commencement of conciliation or other ADR mechanisms; ADR must be court-based and conducted within the law. The claim, having been filed after 15th July, 2013, was time barred; the court was denied jurisdiction to proceed, struck out the suit, and ordered each party to bear its own costs. Judgment was delivered at Nakuru on 6th February, 2020.

Key legal issues

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01

Whether engagement in conciliation suspends the limitation period under section 90 of the Employment Act

Holding

No. Conciliation and out-of-court negotiations do not stop time from running; a claim filed more than three years after termination is time barred.

Reasoning

The court relied on Court of Appeal authority holding that although the law encourages alternative dispute resolution, such processes must be court-based and conducted within the law; time does not stop merely because parties engage in out-of-court negotiations. The claimant was terminated on 16th July 2010 and filed suit on 16th December 2014, over three years later, so the claim was stale and the court was deprived of jurisdiction.

p. 2
02

Consequence of filing outside the statutory limitation period

Holding

The court is denied jurisdiction to entertain the claim and the suit must be struck out.

Reasoning

Following G4S Security Services (K) Limited v Joseph Kamau & 468 others, the ELRC has no jurisdiction to hear and determine claims filed outside the statutory limitation period. The respondents' objection that time is stated in mandatory terms and parties cannot agree to extend it was accepted; hence striking out rather than dismissal on the merits.

p. 2

Legal principles established

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  • Time does not stop running on the commencement of conciliation or other alternative dispute resolution mechanisms; claims outside the three-year period in section 90 of the Employment Act are time barred and the court lacks jurisdiction to hear them

Court orders

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  1. 1.Suit struck out for being time barred under section 90 of the Employment Act, 2007
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsection 90
  • Labour Relations Actsection 62
  • Employment and Industrial Relations Actsection 15
  • Constitution of Kenya, 2010Article 159

Cases cited (5)

  • Hawkins Wagunza Musonye versus Rift Valley Railways Limited
    Misc. Civil Appl. No.11 of 2014
  • Kenya Plantation & Agricultural Workers Union versus Mununga Leaf Base
    [2013] eKLR
  • G4S Security Services (K) Limited versus Joseph Kamau & 468 others
    [2018] eKLR
  • Kenya Electrical Trades & Allied Workers Union versus Kenya Power & Lighting Company Limited
    Misc Appl. No.3 of 2015
  • Rift Valley Railways (Kenya) Ltd V Hawkins Wagunza Musonye and another
    [2016] eKLR
Jurisdiction invoked
Section 90 of the Employment Act, 2007 (limitation jurisdiction of the ELRC)

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, "Kennedy Muriuki Ndwiga v Kenya Credit Traders Limited [2020] KEELRC 1691 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1691/eng@2020-02-06

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