Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedChamber Summons dated 21st December 2023 (Miscellaneous application, Mombasa)· [2024] KEELRC 1884 (KLR)

Lugusa & 69 others v TSS Grain Millers Ltd & 2 others (Cause 137 of 2022) [2024] KEELRC 1884 (KLR)

Employment and Labour Relations Court
18 July 2024
ANAgnes Kitiku Nzei
1,062 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed it cannot extend the strict three-year deadline for filing employment claims, permanently closing the door on these former employees.

What this practically means

#

Executive summary

#
The Applicants, former employees of TSS Grain Millers Limited (1st Respondent), sought leave by Chamber Summons dated 21st December 2023 to file a suit out of time, seeking deeming of the annexed suit as properly filed and costs in the cause. They claimed they were declared redundant in 2016 contrary to Section 40 of the Employment Act, that a suit by their Trade Union (Mombasa ELRC Cause No. 463 of 2016) was struck off for failure to exhaust conciliation and statutory non-compliance with the Insolvency Act, that conciliation failed and compliance was later achieved via a High Court Ruling of 2nd December 2020 in Misc. Cause No. 62 of 2019, and that they had not received terminal dues, with the 1st Respondent sold to the 2nd Respondent. The 3rd Respondent opposed, arguing the application was incompetent and that Section 89 of the Employment Act (formerly Section 90) fixed a three-year limitation period. Justice Agnes Kitiku Nzei held that the ELRC lacks jurisdiction to extend time for suits arising from contracts of service or the Employment Act; the three-year period is absolute. Relying on Beatrice Kahai Adagala, Divecon v Samani and G4S Security Services, the Court further held that conciliation does not toll time. The application was dismissed, the suit documents struck off, the file closed, and each party ordered to bear its own costs, with judgment delivered at Mombasa on 18th July 2024.

Key legal issues

#
01

Whether the Court can extend the statutory limitation period for employment claims

Holding

No; the three-year limitation period under Section 89 (formerly Section 90) of the Employment Act is absolute and the Court has no jurisdiction to extend it

Reasoning

Section 89 of the Employment Act ousts the general extension powers by providing that no civil action based on the Employment Act or a contract of service shall lie unless commenced within three years. The Court of Appeal in Beatrice Kahai Adagala confirmed the provision is in mandatory terms, and Divecon v Samani establishes the period can only be extended in tort claims under Sections 27 and 28 of the Limitation of Actions Act. The Court therefore lacks jurisdiction to grant the leave sought.

p. 2
02

Whether conciliation tolled the limitation period

Holding

Conciliation does not stop time from running under the Employment Act limitation provision

Reasoning

Relying on G4S Security Services v Joseph Kamau and Rift Valley Railways v Hawkins Wagunza, the Court held that although Section 15 of the Employment and Industrial Relations Act encourages alternative dispute resolution, time does not stop running merely because parties engage in conciliation or out-of-court negotiations. The claim went stale three years from the date of termination of employment.

p. 3

Legal principles established

#
  • The ELRC has no jurisdiction to extend time for filing suits arising from breach of contracts of service or based on the Employment Act; the three-year limitation period under Section 89 (formerly Section 90) is absolute.
  • Time does not stop running on the commencement of conciliation or other alternative dispute resolution mechanisms.
  • The limitation period in contract claims is never extended; it can only be extended in claims founded on tort under Sections 27 and 28 of the Limitation of Actions Act.

Court orders

#
  1. 1.The Applicants' Chamber Summons dated 21st December 2023 is dismissed
  2. 2.The suit documents filed alongside the application are struck off
  3. 3.The Court file is ordered closed
  4. 4.Each party will bear its own costs of the proceedings

Authorities

#

Legislation

  • Employment ActSection 40
  • Employment ActSection 89 (formerly Section 90)
  • Limitation of Actions ActCap 22; Sections 4(1), 27, 28
  • Insolvency Actparticular provisions (unspecified)
  • Labour Relations ActSection 62(3)
  • Employment and Industrial Relations ActSection 15

Cases cited (5)

  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • Divecon Limited v Samani
    [1995-1998] EA P. 48
  • Josephat Ndirangu v Henkel Chemicals [E.A] Limited
    [2014] eKLR
  • G4S Security Servies [K] Limtied v Joseph Kamau & 468 others
    [2018] eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza and Another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; application under Section 89 of the Employment Act (formerly Section 90) read with the Limitation of Actions Act (Cap 22)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lugusa & 69 others v TSS Grain Millers Ltd & 2 others (Cause 137 of 2022) [2024] KEELRC 1884 (KLR)", Case Analysis (2024). Chamber Summons dated 21st December 2023 (Miscellaneous application, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1884/eng@2024-07-18

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