Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
IndustrialStruck OutNot stated in the judgment· [2012] KEIC 25 (KLR)

Kenya Plantation & Agricultural Workers Union v Unilever Tea (K) Ltd (Cause 923 of 2012) (Employment and Labour) [2012] KEIC 25 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
25 September 2012
NMNzioki Wa Makau
1,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck out an employee claim filed more than three years late, confirming the strict three-year deadline under Section 90 of the Employment Act.

What this practically means

#

Executive summary

#
The Respondent raised a preliminary objection to the Claimants' employment claim on the ground that, under Section 90 of the Employment Act, the claim ought to have been brought within three years of the act complained of, and that the court therefore lacked jurisdiction. The Respondent's counsel relied on three decisions of Justice Rika in the former Industrial Court. The Claimants opposed, arguing that the dispute had been referred to the Minister and conciliation ordered, which accounted for the delay, and relied on the Labour Relations Act. The court framed two issues: the nature of a preliminary objection, and whether the court had jurisdiction in light of the limitation period. On the first, it applied the classic definition in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, endorsed by the East African Court of Justice, holding that a preliminary objection raises a pure point of law. On the second, it applied Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, holding that jurisdiction goes to the root of a claim. Section 90 of the Employment Act bars civil actions arising from the Act or a contract of service not commenced within three years. The court held the jurisdictional limit could not be ignored and struck out the claim as time barred. However, on account of the suffering each party had endured, it ordered each party to bear its own costs.

Key legal issues

#
01

Definition and nature of a preliminary objection

Holding

A preliminary objection is in the nature of a demurrer, raising a pure point of law pleaded or arising clearly from the pleadings, capable of disposing of the suit; it cannot be raised where facts must be ascertained or judicial discretion exercised.

Reasoning

The court adopted the classic formulations in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, quoting Law JA and Sir Charles Newbold P. It noted the aim of a preliminary objection is to save court time by disposing of the matter in limine. The court also referenced the East African Court of Justice's adherence to the same test in the Serengeti case and the IMLU appeal, confirming the Respondent's objection fit the definition.

p. 2
02

Whether the court had jurisdiction given the limitation period in Section 90 of the Employment Act

Holding

The court lacked jurisdiction to entertain a claim filed outside the three-year limitation period prescribed by Section 90 of the Employment Act, and struck out the claim as time barred.

Reasoning

Relying on Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, the court held jurisdiction goes to the root of any claim and must be determined immediately. Section 90 of the Employment Act bars civil actions arising from the Act or a contract of service not commenced within three years. The Claimants' conciliation explanation did not cure the limitation bar, and the Claim had to be struck out.

p. 4

Legal principles established

#
  • A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised
  • Jurisdiction is a threshold matter; without it a court cannot take any further step
  • Employment claims must be filed within three years of the act complained of under Section 90 of the Employment Act

Court orders

#
  1. 1.The Claim is struck out as time barred
  2. 2.Each party shall bear its own costs

Authorities

#

Legislation

  • Employment ActSection 90
  • Labour Relations ActNot specified (power of the court to hear matters before it)
  • Limitation of Actions ActSection 4(1)

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd
    [1969] E.A. 696
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • The Honourable Attorney General of The United Republic of Tanzania And African Network For Animal Welfare (ANAW) (Serengeti Case)
    Appeal No. 3 of 2011
  • Attorney General of Kenya v Independent Medical Legal Unit
    EACJ Appeal No. 1 of 2011
  • Cause No. 1040 of 2010 (Ruling delivered 23rd August 2012, same court)
Jurisdiction invoked
Jurisdiction of the Industrial Court under the Labour Relations Act; limitation under Section 90 of the Employment Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers Union v Unilever Tea (K) Ltd (Cause 923 of 2012)  (Employment and Labour) [2012] KEIC 25 (KLR)", Case Analysis (2012). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2012/25/eng@2012-09-25

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