[2018] KEELRC 1546 (KLR)
The court found that the claim was improperly before it because there was no evidence that the dispute had passed through the required conciliation process or that a ministerial certificate had been issued, as mandated by the repealed Employment Act and Trade Disputes Act. Additionally, the claim was filed within...
Source-derived case information.
- Citation
- [2018] KEELRC 1546 (KLR)
- Parties
- Applicant: Joab Isaac Ouma; Respondent: National Social Security Fund
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 279 of 2012
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- claim dismissed on preliminary objection
- Judges
- HS Wasilwa
- Legal Topics
- Limitation Periods, Unfair Termination, Conciliation Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joab Isaac Ouma
Applicant
National Social Security Fund
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is time-barred under the applicable limitation period.
- 2 Whether the claim is properly before the court without evidence of conciliation and ministerial certificate under the repealed Employment Act.
Ratio Decidendi
The court found that the claim was improperly before it because there was no evidence that the dispute had passed through the required conciliation process or that a ministerial certificate had been issued, as mandated by the repealed Employment Act and Trade Disputes Act. Additionally, the claim was filed within the six-year limitation period, but the procedural requirement of ministerial authority was not met. The court therefore upheld the preliminary objection and dismissed the claim for want of compliance with statutory preconditions for instituting such a claim.
Court Disposition
claim dismissed on preliminary objection
Orders
- The preliminary objection is upheld.
- The claim is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC CAUSE NO. 279 OF 2012
(Before Hon. Justice Hellen S. Wasilwa on 21st June, 2018)
JOAB ISAAC OUMA...............................................LAIMANT
VERSUS
NATIONAL SOCIAL SECURITY FUND.....RESPONDENT
RULING
1. The Application before Court is the Preliminary Objection raised by the Respondents herein on the grounds that this claim is time barred.
2. The Respondents submitted that the Claimant was terminated on 9/8/2007 as at page 3 of his documents paragraph 2. The suit was however instituted on 22/12/2012 which was 5 years after the dismissal which is contrary to Section 90 of Employment Act.
3. The Respondents also aver that since the course of action arose on 9. 8.2007, the Repealed Employment Act Cap 226 applies and since the Claimant did not report this case to the Minister for Labour, the case cannot succeed.
4. The Respondent/Claimant opposed this Preliminary Objection. They stated that there were negotiations before the Labour office until 2010 and so the time was not running then. They want the Preliminary Objection to be dismissed.
5. I have considered the averments of both parties. I note that indeed the Claimant as per his Memorandum of Claim, he was dismissed on 9. 8.2017. This was during the dispensation of the repealed Employment Act Cap 227. Under the Trade Disputes Act Section 14(9) (f) provides that:-
“The Court shall not take cognizance of any trade dispute or deal with any matter connected therewithwhere the trade dispute solely concerns the dismissal or reinstatement of any employee, unless the Court has received, in addition to the certificate required by paragraph (e) the written authority of the Minister for that purpose”.
6. In the Claimant’s case, there is no indication that this claim passed through the conciliation process and if it did, there is no certificate to that effect by the Minister. This claim is therefore improperly before Court.
7. Secondly, the cause of action having occurred in 2007, under the repealed law, the limitation period will be 6 years, which is 8/8//2013 as provided for under Cap 22.
8. However, the Claimant’s pleadings seek prayers brought under the current Employment Act. In any case, since in this claim there was not attempt to reconcile the matter, the claim is improperly before Court and I therefore find the Preliminary Objection has merit. I therefore uphold the Preliminary Objection and dismiss this claim accordingly.
9. There will be no order as to costs.
Dated and delivered in open Court this 21st day of June, 2018.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
No appearance for Parties