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ELRCStruck OutCause No E344 of 2022· [2023] KEELRC 655 (KLR)

Public Transport Operators (Puton) Union v Kagwi (Cause E344 of 2022) [2023] KEELRC 655 (KLR)

Employment and Labour Relations Court
15 March 2023
JGJACOB GAKERI
2,706 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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The respondent filed a preliminary objection dated January 12, 2023 raising three grounds: that the grievant, Mathew K. Sajero, was not a member of the claimant union (Public Transport Operations Union - PUTON), that the union therefore lacked capacity and locus standi to sue on his behalf, and that the suit was time barred. The objection was anchored on sections 2 and 12 of the Labour Relations Act and section 90 of the Employment Act, 2007. The claimant responded that the grievant joined the union in February 2015 and attached receipts of union dues, and argued that time under section 90 only began running upon issuance of a certificate of unresolved dispute under section 73(1) of the Labour Relations Act. Applying the Mukisa Biscuits test, the court held that the union membership objection was a contested question of fact, not a pure point of law, and was therefore not a competent preliminary objection. However, the plea of limitation qualified as a proper preliminary objection. The court found section 90 of the Employment Act to be couched in mandatory terms and held that section 73(1) of the Labour Relations Act, being permissive, neither excepts nor qualifies the three-year limitation period. Relying on Court of Appeal authorities, the court held that the cause of action in a termination claim accrues on the date stated in the termination letter. Since the grievant's employment was terminated on May 3, 2019 and the suit was filed on May 25, 2022, the claim was statute barred. The court found it had no jurisdiction over the suit, allowed the preliminary objection, struck out the suit with costs to the respondent.

Key legal issues

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01

Whether the objection that the grievant was not a union member was a competent preliminary objection

Holding

It was not; union membership is a question of fact requiring evidence, not a pure point of law

Reasoning

The respondent contended the grievant was not a union member and thus the union lacked capacity to sue. The claimant countered with payment receipts and a membership card. The court held that whether the grievant was a member was a contested factual issue provable by evidence, and therefore could not form the basis of a preliminary objection, which must be a pure point of law.

p. 3
02

Whether the suit was time barred under section 90 of the Employment Act

Holding

Yes; the cause of action accrued on May 3, 2019 (date of termination) and the suit filed on May 25, 2022 was outside the three-year limitation period

Reasoning

Section 90 of the Employment Act is couched in mandatory terms and applies to all civil actions arising out of the Employment Act or a contract of service. Section 73(1) of the Labour Relations Act is permissive and does not extend or modify the limitation period. The claimant's own pleadings admitted termination on May 3, 2019, so the suit filed in May 2022 was statute barred.

03

Whether conciliation under section 73(1) of the Labour Relations Act suspends or postpones the running of limitation time

Holding

No; the two systems are complementary and choosing conciliation does not suspend limitation time

Reasoning

Section 73(1) is couched in permissive terms; there is no obligation to refer a dispute to conciliation or to await a certificate before suing. Parties who consensually opt for ADR cannot later claim that limitation locked them out of court. The court held the two dispute-resolution systems are complementary and the wronged party must make the choice within the prescribed duration.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law, incapable of being established by ascertainment of facts or exercise of judicial discretion
  • Whether a grievant is or was a member of a claimant union is a question of fact and not a pure point of law for a preliminary objection
  • Section 73(1) of the Labour Relations Act neither excepts nor qualifies the three-year limitation period in section 90 of the Employment Act
  • In termination of employment, the cause of action accrues on the date indicated on the letter of termination
  • A plea of limitation is a proper preliminary objection as it implicates the court's jurisdiction

Court orders

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  1. 1.The respondent's preliminary objection dated January 12, 2023 is merited
  2. 2.The claimant's suit is struck out for being statute barred
  3. 3.Costs to the respondent

Authorities

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Legislation

  • Labour Relations Actsection 2, section 12, section 73(1)
  • Employment Act, 2007section 90
  • Limitation of Actions Actsection 4(1)
  • Constitution of KenyaArticle 159(2)(d), Article 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (7)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA 696
  • Nitin Properties Limited v Singh Kalsi and another
    (1995) eKLR
  • Hassan Ali Joho and another v Suleiman Said Shabal and 2 others
    (2014) eKLR
  • Nyabuto Arambe Abusa v Kenya Power and Lighting Co. Ltd
    (2017) eKLR
  • Attorney General and another v Andrew Maina Githinji and another
    (2016) eKLR
  • Hilarion Mwabolo v Kenya Commercial Bank Ltd
    (2013) eKLR
  • Ben Kiplagat Tunduny v Standard Chartered Bank Limited
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Relations 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, "Public Transport Operators (Puton) Union v Kagwi (Cause E344 of 2022) [2023] KEELRC 655 (KLR)", Case Analysis (2023). Cause No E344 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/655/eng@2023-03-15

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