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ELRCStruck OutMemorandum of Claim dated 9th February 2016· [2021] KEELRC 1599 (KLR)

Bakery Confectionery Food Manufacturing and Allied Workers Union v Razco Limited [2021] KEELRC 1599 (KLR)

Employment and Labour Relations Court
28 May 2021
MOMaureen Onyango
2,952 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a union's unfair termination claims because they were filed five years late—the three-year limit keeps running during conciliation.

What this practically means

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Executive summary

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The Claimant, a registered trade union, sued on behalf of five grievants (Thomas Amungui, Abraham Musa Mulagilo, Christopher Otikho, William Wanjala Sifuna and Elisha Adede Oloo) who had been employees of the Respondent before termination between December 2009 and January 2011. By a memorandum of claim dated 9th February 2016, the Claimant sought declarations that the grievants were wrongfully locked out or declared redundant, terminal and redundancy benefits under the CBA and the Employment Act, interest, and costs. The Respondent entered appearance but filed no defence; its preliminary objection was struck out in November 2019, and the matter proceeded by written submissions, with the Claimant filing an affidavit of Thomas Amangui. The Claimant argued the grievants were permanent employees under the CBA, whose fixed-term engagements and terminations were unlawful, relying on Section 49 of the Employment Act and CBA enforcement authorities. The Respondent submitted only that the claim was statute barred under Section 90 of the Employment Act, which requires such claims to be filed within three years. The court, raising the jurisdictional issue on its own motion notwithstanding the undefended status of the suit, found the causes of action arose in 2009, 2010 and 2011 and became statute barred between 2012 and 2014. The dispute was reported to the Minister only in June 2012 and filed in court on 25th February 2016, five years after the last cause of action. Conciliation does not suspend limitation. The suit was struck out with no orders for costs, since the Respondent had filed no defence. Judgment was delivered virtually on 28th May 2021 under COVID-19 directions.

Key legal issues

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01

Whether the claim is statute barred under Section 90 of the Employment Act, 2007

Holding

Yes. The causes of action arose in 2009, 2010 and 2011; the claim filed on 25th February 2016 was 5 years after the last cause of action, well beyond the three-year limitation period. Conciliation does not suspend limitation.

Reasoning

Section 90 requires claims arising out of the Employment Act or a contract of service to be filed within three years of the act complained of. The causes of action arose between 2009 and 2011, so the claims became statute barred between 2012 and 2014. The trade dispute was reported to the Minister only on 13th June 2012, over a year after the last cause of action, and the pendency of conciliation does not arrest time. Filing on 25th February 2016 left the court without jurisdiction.

p. 5
02

Whether the court may entertain an undefended claim that is statute barred

Holding

No. Jurisdiction is a threshold issue the court must address even in an undefended suit.

Reasoning

Although the Respondent filed no defence and the matter was set down as an undefended claim, the court invoked the principle that jurisdiction is everything and must be examined on its own motion. A court cannot assume jurisdiction through craft or interpretation where the statute is clear; Section 90's peremptory 'shall' limits actions to three years, and any claim outside that period cannot be entertained regardless of the absence of a defence.

p. 4

Legal principles established

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  • Time does not stop running on commencement of conciliation or other alternative dispute resolution mechanisms; the three-year limitation in Section 90 of the Employment Act continues to run.
  • A court must raise the issue of jurisdiction sua sponte even where not properly pleaded by a party.

Court orders

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  1. 1.The suit is struck out for being statute barred
  2. 2.No orders for costs as the Respondent did not file any defence

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSection 49
  • Employment ActSection 40
  • Employment ActSection 10(6)
  • Labour Relations ActSections 62(3), 67(1)(a), 69
  • Limitation of Actions ActSection 4(1)
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (11)

  • Bakery Confectionary Food Manufacturing & Allied Workers Union (K) v Kenafric Industries Limited
    (2018) eKLR
  • Kenya Shoe and Leather Union v Bata Shoe Company Limited
    (2017) eKLR
  • Interim Independent Electoral Commission
    S.C Constitutional Application No. 2 of 2011
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    S.C. Application No. 2 of 2012; [2012] eKLR
  • Gathoni v Kenya Co-operative Creameries Ltd
    Civil Application No. 122 of 1981
  • Maria Machocho v Total (K)
    Industrial Court No. 2 of 2012
  • Nicodemus Marani v Timsales Limited
    Industrial Cause No. 204 of 2013
  • David Ngugi Waweru v Attorney General & Another
    (2017) eKLR
  • Boniface Inodi Otieni
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil, (Kenya) Ltd
    [1989] KLR 1
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye and another
    [2016] eKLR
Jurisdiction invoked
Section 90 of the Employment Act, 2007 (limitation) as it bears on the court's jurisdiction; Labour Relations Act, 2007 conciliation framework

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, "Bakery Confectionery Food Manufacturing and Allied Workers Union v Razco Limited [2021] KEELRC 1599 (KLR)", Case Analysis (2021). Memorandum of Claim dated 9th February 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1599/eng@2021-05-28

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