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ELRCStruck OutCause No E088 of 2023· [2023] KEELRC 2551 (KLR)

Michira & 41 others v Aegis Kenya Ltd t/a Leopard Beach Hotel (Cause E088 of 2023) [2023] KEELRC 2551 (KLR)

Employment and Labour Relations Court
19 October 2023
MMM. MBARŨ
1,639 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 late-filed claim, confirming the three-year filing deadline is strict and conciliation does not pause it.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (M. Mbarũ, J) determines a Notice of Preliminary Objection dated 12 September 2023 in which the respondent contended that the claimants' causes of action, founded on employment contracts terminated in April 2020, were time barred under section 90 of the Employment Act, 2007, the suit having been instituted in August 2023. The claimants opposed, asserting that the date of termination was a contested issue of fact, that employment continued as they were sent on indefinite compulsory leave without a return date at the onset of COVID-19, that NSSF statements identified the respondent as their employer, that some reliefs (such as gratuity) fell outside section 90, and that a statutory conciliation process, whose final report issued on 23 February 2023, stopped time from running. The court held section 90 framed in mandatory terms, denying the court jurisdiction to extend time; that the cause of action accrued on termination or, for continuing injury, required filing within twelve months of cessation; that an NSSF statement cannot confer employment; and that conciliation does not suspend limitation, parties instead being free to file suit and pursue conciliation under section 15 of the Employment and Labour Relations Act, 2011. The court found the claim filed outside the limitation period, struck out the suit, and ordered each party to bear its own costs.

Key legal issues

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01

Limitation under section 90 of the Employment Act, 2007

Holding

The suit filed in August 2023 over a cause of action arising in April 2020 is time barred and the court lacks jurisdiction to entertain it.

Reasoning

Section 90 is mandatory: claims must be filed within three years of the act complained of, or within twelve months of cessation of a continuing injury. The claimants were sent on indefinite compulsory leave in April 2020. Claims for unpaid salaries were a continuing injury which ought to have been filed within twelve months. Filing in August 2023 falls outside both windows, depriving the court of jurisdiction.

p. 4
02

Whether conciliation suspends limitation

Holding

Conciliation does not stop time running; a party should file suit within time and may pursue conciliation while the matter is pending in court.

Reasoning

Although conciliation is statutorily permitted, section 90's limitation is not suspended by it. Parties are at liberty to file suit to secure their rights and then apply under section 15 of the Employment and Labour Relations Act, 2011 for conciliation while the matter is pending. The reference of the claimants' matter to conciliation therefore does not avail as a defence to limitation.

p. 3
03

Effect of NSSF statements naming the respondent as employer

Holding

An NSSF statement is not a contract of employment and cannot confer employment.

Reasoning

The claimants relied on NSSF statements listing the respondent as their employer to show employment continued. The court held such records merely list the last known employer who remitted statutory dues and do not establish an employment relationship.

p. 3

Legal principles established

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  • A claim based on a contract of service must be filed within three years, and the court has no jurisdiction to extend time under section 90 of the Employment Act.
  • Statutory conciliation does not suspend the limitation period under section 90 of the Employment Act.

Court orders

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  1. 1.The suit is struck out
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Actsection 4(1)
  • Employment and Labour Relations Actsection 15

Cases cited (11)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA
  • David Ngugi Waweru v Attorney General & another
    [2017] eKLR
  • Hilarion Mwabolo v Kenya Commercial Bank
    [2013] eKLR
  • BIFU v Bank of India
  • Kenya Electrical Traders v Kenya Power & Lighting Co
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR
  • Johnson Kazungu v Kenya Marine & Fisheries Research Institute
    [2021] eKLR
  • John Kiiru Njiiri v University of Nairobi
    [2021] eKLR
  • Monicah Wanjiku Kanyingi v Our Lady of Mercy Secondary School
    [2018] eKLR
  • Khawu v Aegis Ltd
    ELRC Cause No. E002 of 2020
  • ELRC Cause No. 658 of 2021 (claimants v respondent)
Jurisdiction invoked
Jurisdiction of the ELRC under the Employment and Labour Relations Act, subject to the limitation bar in section 90 of the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Michira & 41 others v Aegis Kenya Ltd t/a Leopard Beach Hotel (Cause E088 of 2023) [2023] KEELRC 2551 (KLR)", Case Analysis (2023). Cause No E088 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2551/eng@2023-10-19

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