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ELRCStruck OutCause No 95 of 2019· [2023] KEELRC 1957 (KLR)

Kenya Tertiary & Schools Workers Union (KETASWU) v Rocky Driving School (Cause 95 of 2019) [2023] KEELRC 1957 (KLR)

Employment and Labour Relations Court
31 July 2023
CBChristine N. Baari
1,320 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employment claim filed 23 days past the three-year limit was struck out in its entirety, with costs awarded against the union.

What this practically means

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Executive summary

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The Respondent lodged a notice of preliminary objection dated February 27, 2023, contending that the Claimant's supplementary statement of claim was fatally defective and statute barred. The Respondent argued, relying on Rule 14(7) of the Employment and Labour Relations Court (Procedure) Rules, that the supplementary statement introduced a new cause of action through the back door; the original suit concerned only the transfer of two grievants, Samwel Onyiego and Hassan Mugo, not their termination. It further submitted that since the grievants were terminated on November 20, 2019, and the supplementary statement was filed beyond the three-year period prescribed by Section 90 of the Employment Act, the claim was time barred. The Claimant filed no submissions. The court framed two issues: whether the claim was fatally defective, and whether the suit was statute barred. On the first, the court agreed that the supplementary statement constituted a completely different suit from the initial claim - which sought to stop transfers and harassment - and that the Claimant ought to have sought leave to amend or filed a fresh suit, applying the principles in Joseph Ochieng v First National Bank of Chicago. On limitation, the court held that the cause of action accrued on termination on November 20, 2019, and that the supplementary statement filed on December 13, 2022 fell about 23 days outside the three-year period, rendering the claim statute barred. The court struck out the Claimant's suit in its entirety with costs to the Respondent.

Key legal issues

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01

Whether the Claimant's supplementary statement of claim was fatally defective

Holding

Yes - the supplementary statement introduced a completely different suit (declaratory orders and compensation for termination) rather than merely supplementing the initial claim (stoppage of transfers, intimidation and harassment), and should have been an amended statement of claim or a fresh suit

Reasoning

The court compared the initial claim and the supplementary statement and found the latter a completely different suit. Relying on Rule 14(7) of the ELRC Procedure Rules and the principles in Joseph Ochieng & 2 others v First National Bank of Chicago on amendment of pleadings, the court held that a supplementary pleading cannot be used to introduce a new cause of action through the back door, particularly where the amendment would deprive a defendant of limitation defences.

p. 2
02

Whether the claim founded on the grievants' termination was statute barred

Holding

Yes - the grievants were terminated on November 20, 2019, the cause of action accrued then, and the supplementary statement filed on December 13, 2022 was outside the three-year limitation period under Section 90 of the Employment Act

Reasoning

Section 90 of the Employment Act prescribes a three-year limitation period for actions based on a contract of service. The cause of action on termination accrues when the termination letter is received. The supplementary statement pleaded termination on November 20, 2019 but was filed on December 13, 2022, about 23 days after the limitation period lapsed, rendering the claim incompetent.

p. 4

Legal principles established

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  • A civil action based on or arising out of a contract of service must be commenced within three years of the act, neglect or default complained of
  • A cause of action in a termination case accrues on the date the employee receives the termination letter
  • A supplementary pleading cannot be used to introduce a new cause of action; where there is a substantive change, the party must seek leave to amend or file a fresh suit

Court orders

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  1. 1.Striking out the Claimant's suit in its entirety with costs to the Respondent

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 14(7)
  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)

Cases cited (7)

  • Central Kenya Limited v Trust Bank Limited & 5 Others
    (2000) eKLR
  • John Kiiru Njiru v University of Niarobi
    (2021) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Joseph Ochieng & 2 others v First National Bank of Chicago
    Civil Appeal No 149 of 1991
  • Gathoni v Kenya Co-operative Creameries Ltd
    Civil Application No 122 of 1981
  • Attorney General v Andrew Maina Githinji & Another
    (2016) eKLR
  • Samson Leteipa Ole Kimongo v Inspector General, National Police Service & 2 Others
    [2022] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction; Employment and Labour Relations Court (Procedure) Rules, Rule 14(7)

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 Tertiary & Schools Workers Union (KETASWU) v Rocky Driving School (Cause 95 of 2019) [2023] KEELRC 1957 (KLR)", Case Analysis (2023). Cause No 95 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1957/eng@2023-07-31

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