Transport Workers Union

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU CAUSE NO. 257 OF 2016 TRANSPORT WORKERS UNION (K) CLAIMANT v SCARCE COMMODITIES LTD RESPONDENT RULING 1. The Transport Workers Union (K) commenced legal proceedings against Scarce Commodities Ltd (Respondent) on 4 July 2016 and the issue in dispute was stated as Unfair termination and failure to pay the terminal benefits to Mr. Philip Mwatela Chuphi and Boniface Keli Mutuku. 2. In paragraph 5(a) of the Memorandum of Claim, the Union pleaded that the 2 Grievants employment were terminated on 6 April 2010 and 20 April 2010 respectively. Complaints of underpayment of wages were also outlined. 3. The Union also pleaded that the dispute(s) were taken through conciliation, and a Certificate of Disagreement was issued on 3 November 2010. 4. The Respondent in paragraph 7 of the Response to Claim contended that the cause(s) of action advanced by the Union were time barred in terms of section 90 of the Employment Act, 2007. 5. The objection on time bar was taken on 18 January 2017. 6. It cannot be disputed that the cause(s) of action presented by the Union relates to disputes arising out of contracts of service. The cause(s) of action accrued around April 2010 as outlined in paragraph 5(a) of the Memorandum of Claim. 7. In terms of section 90 of the Employment Act, 2007, the legal proceedings should have been instituted on or before April 2013, but the Union only moved to Court on 4 July 2016. 8. It is clear that the claims presented had already been caught up by limitation. 9. Even assuming that the cause(s) of action accrued at the time the Conciliator issued a Certificate of Disagreement on 3 November 2010, the proceedings ought to have been instituted on or before November 2013. 10. The Court will uphold the preliminary objection and dismiss the Memorandum of Claim herein with no order as to costs.

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