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ELRCStruck OutNot stated in judgment· [2020] KEELRC 1893 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Agricultural Society of Kenya [2020] KEELRC 1893 (KLR)

Employment and Labour Relations Court
6 February 2020
MMM. Mbaru
1,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a delayed employment claim, confirming that three years is a hard deadline and negotiations do not pause the clock.

What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nakuru (M. Mbaru, J) determines preliminary objections filed by the respondent, Agricultural Society of Kenya, against a claim by the claimant union on behalf of grievant John Kanyiri, seeking reinstatement or terminal dues for unfair termination. The objections contended that the claim was improperly instituted given Legal Notice No. 6024 of 10th June 2018 designating magistrates to hear employment disputes, that the Memorandum of Claim and Verifying Affidavit were endorsed by different officers, and that the claim was time barred under section 90 of the Employment Act, 2007. Applying Mukisa Biscuits and authorities including Attorney General v Andrew Maina Githinji and Rift Valley Railways v Hawkins Wagunza Musonye, the court held that the grievant's employment effectively ceased on 11th May, 2013 when he was arrested and charged, and that subsequent negotiations, a Ministerial conciliation, and a certificate of unresolved issues did not stop time from running under section 90. The three-year limitation period lapsed on 10th May, 2016, before the claim filed on 19th September, 2018. The court found the objections with merit, struck out the claim as time barred, and ordered each party to bear its own costs. The other grounds of the objections were not separately determined.

Key legal issues

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01

Whether the claim is time barred under section 90 of the Employment Act, 2007

Holding

Yes; employment ceased on 11th May, 2013 and the claim filed on 19th September, 2018 is outside the 3-year limitation period, which is mandatory and cannot be extended by negotiations

Reasoning

The court found the grievant's last day at work was 11th May, 2013 when arrested and charged. Though the claimant wrote seeking reinstatement in September 2016 and a conciliator was appointed, authorities establish that time under section 90 does not stop running due to negotiations, and the court has no discretion to extend the statutory period. The 3-year period lapsed on 10th May, 2016.

p. 2

Legal principles established

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  • The limitation period under section 90 of the Employment Act, 2007 is not extended by out-of-court negotiations between the parties

Court orders

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  1. 1.The claim is barred in time and is struck out
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsection 90
  • Criminal Procedure Codesection 87(a)
  • Employment and Labour Relations Actsection 15
  • Limitation of Actions ActSections 27 and 28
  • Legal Notice No. 602410th June, 2018 appointment of special magistrates

Cases cited (7)

  • Mukisa Biscuits Manufacturing Ltd versus West End Distributors
    (1969) EA 696
  • Attorney General & another versus Andrew Maina Githinji & another
    [2016] eKLR
  • Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers versus Comboni Polytechnic
    [2019] eKLR
  • Maria Machocho versus Total (K)
    Cause No. 2 of 2012
  • Josephat Ndirangu versus Henkel Chemicals (EA) Limited
    [2013] eKLR
  • Solomon Asenaka versus Chairman, Board of Governors Senende High School
    [2019] eKLR
  • Rift Valley Railways (Kenya) Ltd Versus Hawkins Wagunza Musonye and another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Act; preliminary objections on jurisdiction and limitation under section 90 of the Employment Act, 2007

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 Union of Commercial, Food and Allied Workers v Agricultural Society of Kenya [2020] KEELRC 1893 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1893/eng@2020-02-06

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