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ELRCStruck OutCause No E288 of 2022· [2023] KEELRC 1640 (KLR)

Awino v Insight Management Consultants Ltd (Cause E288 of 2022) [2023] KEELRC 1640 (KLR)

Employment and Labour Relations Court
10 July 2023
1,693 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an employment claim filed years late, confirming the three-year deadline in employment cases is strict and cannot be extended.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (Dr. Jacob Gakeri, J) determined a preliminary objection dated January 5, 2023 by the respondent, Henkel Kenya Ltd, seeking striking out of the claimant's suit as statute barred under section 90 of the Employment Act, 2007 and for want of jurisdiction. The claimant, whose employment was terminated on July 31, 2017, opposed through grounds of opposition, arguing that he had followed the required procedural sequence by pursuing alternative dispute resolution through his trade union, the Kenya Chemical Workers Union, invoking section 62 of the Labour Relations Act and the doctrine of exhaustion, and that as a contractual claim he had a six-year window under the Limitation of Actions Act. In submissions, the respondent relied on Daniel Kiptoo Kaakima v East Africa Portland Cement Co. Ltd and the Mukisa Biscuits threshold, arguing the suit was filed close to five years after termination and that the court had no discretion to extend time in contract-of-service claims. The court first held the objection competent under Mukisa Biscuits since it raised a pure point of law on limitation. It found the alleged ADR process unsubstantiated: the Ministry of Labour letters did not relate to the termination, the union's dispute letter predated the termination and concerned CBA implementation and outsourcing, and there was no Conciliator's Certificate. The court held that section 90 admits no extension of time or postponement, rejected the six-year argument as an overstretch of imagination, and treated limitation as a jurisdictional bar. The preliminary objection was upheld and the suit struck out as statute barred.

Key legal issues

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01

Whether the preliminary objection meets the Mukisa Biscuits threshold

Holding

It does, because it is founded on limitation, a pure point of law.

Reasoning

The court applied the classic test that a preliminary objection is a pure point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit, citing jurisdiction, limitation or arbitration as examples. Since the objection was based on limitation, it qualified.

p. 3
02

Whether the suit is statute barred under section 90 of the Employment Act

Holding

Yes. Employment was terminated on July 31, 2017 and the suit was filed close to five years later, far beyond the three-year limitation period.

Reasoning

Section 90 requires actions based on the Employment Act or a contract of service to be commenced within three years. The alleged engagement in alternative dispute resolution was unsupported by evidence; the union letters predated the termination and concerned a different dispute (CBA implementation and outsourcing), and there was no Conciliator's Certificate under section 62 of the Labour Relations Act.

p. 4
03

Whether the court has jurisdiction

Holding

No. Limitation being jurisdictional, the court lacks jurisdiction over a time-barred suit.

Reasoning

Because limitation goes to jurisdiction, the court held it could not hear and determine the suit, notwithstanding the claimant's arguments based on exhaustion of remedies and article 159 of the Constitution.

p. 4
04

Whether the Limitation of Actions Act's six-year contractual window applies to the claim

Holding

No. Section 90 of the Employment Act governs employment contracts, and the six-year argument was rejected.

Reasoning

The claimant argued a six-year limitation window under the Limitation of Actions Act because the claim was contractual. The court held that this overstretch the imagination, since section 90 of the Employment Act expressly notwithstanding section 4(1) of the Limitation of Actions Act governs suits based on contracts of service.

p. 4

Legal principles established

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  • Section 90 of the Employment Act admits no extension of time or postponement of the running of limitation by the court, even where the claimant alleges alternative dispute resolution or conciliation.
  • Limitation of time is essentially a jurisdictional issue.

Court orders

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  1. 1.The preliminary objection dated January 5, 2023 is upheld
  2. 2.The claimant's suit is struck out for being statute barred

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 87
  • Labour Relations Act, 2007section 62
  • Labour Relations Act, 2007section 29
  • Limitation of Actions Actsection 4(1)
  • Employment and Labour Relations Court Actsection 12
  • Constitution of Kenya, 2010article 41
  • Constitution of Kenya, 2010article 159
  • Constitution of Kenya, 2010article 159(2)(d), article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B

Cases cited (4)

  • Daniel Kiptoo Kaakima v East Africa Portland Cement Co. Ltd
    [2018] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • William Odhiambo Ramogi & 3 others
  • Kenya Union of Printing Publishing, paper Manufacturers Pulp and Packaging v Bags (E.A) Ltd
    [2014] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, 2011

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, "Awino v Insight Management Consultants Ltd (Cause E288 of 2022) [2023] KEELRC 1640 (KLR)", Case Analysis (2023). Cause No E288 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1640/eng@2023-07-10

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