Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2023] KEELRC 1238 (KLR)

Kenya Engineering Workers Union v Kenya General Industries Limited (Cause E075 of 2022) [2023] KEELRC 1238 (KLR)

Employment and Labour Relations Court
25 May 2023
MMM. Mbarũ
678 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling of the Employment and Labour Relations Court at Mombasa (M. Mbarũ, J) determined a preliminary objection by the respondent, Kenya General Industries Limited, on the ground that the claimant union's claim on behalf of three grievants - Jairus Achevi, Raphael Maghanga and Mwamodi Shanga - was statute barred under Section 90 of the Employment Act, 2007, and that the court lacked jurisdiction. The grievants' employment terminated on 6 September 2019, 21 December 2018 and 16 August 2019 respectively, but the claim was only filed on 22 September 2022, more than three years after termination in each case. The respondent relied on Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another [2016] eKLR, where the Court of Appeal held that time does not stop running merely because parties engage in out-of-court negotiations or conciliation, and on Kenya Airways Ltd v Transport and Allied Workers Union. The claimant did not file responses and did not attend the hearing of the objection. The court found that, under Section 90, the claims ought to have been filed on or before 5 September 2022, 20 December 2022 and 15 August 2022 respectively, and that reporting the dispute to the Minister did not arrest limitation. The court held it was denied jurisdiction over claims filed out of time, dismissed the entire claim, and awarded costs to the respondent.

Key legal issues

#
01

Limitation under Section 90 of the Employment Act

Holding

All three grievants' claims were filed more than three years after termination and are time barred

Reasoning

The terminations occurred on 6 September 2019, 21 December 2018 and 16 August 2019, so claims should have been filed by 5 September 2022, 20 December 2022 and 15 August 2022 respectively. The claim was filed on 22 September 2022, outside the period, and although a dispute had been reported to the Minister, Section 90 requires filing in court within three years.

p. 2
02

Effect of conciliation/report to the Minister on limitation

Holding

Reporting a dispute to the Minister and engaging in conciliation does not extend or suspend the limitation period

Reasoning

Relying on Rift Valley Railways v Musonye, the court adopted the position that alternative dispute resolution under the Employment and Labour Relations Act must be court-based and conducted within the law; out-of-court negotiations do not stop time running, and parties must bear Section 90 in mind even while negotiating.

p. 2
03

Jurisdiction over time-barred claims

Holding

The court lacks jurisdiction to hear and determine claims filed out of time and must dismiss them

Reasoning

Because Section 90 denies the court jurisdiction over claims filed outside three years, none of the grievants' claims could be entertained; the proper response was dismissal rather than striking out on other grounds, with costs to the respondent who succeeded on the preliminary objection.

p. 1

Legal principles established

#
  • Under Section 90 of the Employment Act, employment claims must be filed within three years of termination; a court is denied jurisdiction over claims filed out of time
  • Engagement in out-of-court negotiations or conciliation does not stop time running under Section 90

Court orders

#
  1. 1.The claim herein is dismissed
  2. 2.Costs to the respondent

Authorities

#

Legislation

  • Employment Act, 2007Section 90
  • Employment and Labour Relations Act (referred to as Employment and Industrial Relations Act)Section 15

Cases cited (2)

  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another
    [2016] eKLR
  • Kenya Airways Limited v Transport and Allied Workers Union
Jurisdiction invoked
Section 90 of the Employment Act, 2007 (limitation of employment claims)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Engineering Workers Union v Kenya General Industries Limited (Cause E075 of 2022) [2023] KEELRC 1238 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1238/eng@2023-05-25

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