[2023] KEELRC 2158 (KLR)
The court found that the claimant's own pleadings established the date the grievant was stopped from work as 7th July 2012. The claim was filed on 29th September 2016, more than one year after the expiry of the three-year limitation period set by Section 90 of the Employment Act. The respondent's denial of the...
Source-derived case information.
- Citation
- [2023] KEELRC 2158 (KLR)
- Parties
- Applicant: Kenya Building, Construction, Timber and Furniture Industries Employees Union; Respondent: Kartar Singh
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2014 of 2016
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed as statute-barred
- Judges
- J Rika
- Legal Topics
- Limitation Periods, Termination of Employment, Statutory Bar, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Building, Construction, Timber and Furniture Industries Employees Union
Applicant
Kartar Singh
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claim was filed within the statutory limitation period under Section 90 of the Employment Act.
- 2 Whether the respondent's denial of employment relationship affects the limitation analysis.
Ratio Decidendi
The court found that the claimant's own pleadings established the date the grievant was stopped from work as 7th July 2012. The claim was filed on 29th September 2016, more than one year after the expiry of the three-year limitation period set by Section 90 of the Employment Act. The respondent's denial of the employment relationship or assertion that the grievant was subcontracted did not alter the fact that the claim was statute-barred. The court held that parties cannot plead facts and later allege those facts are disputed to suit their case. Accordingly, the claim was dismissed as time-barred.
Court Disposition
claim dismissed as statute-barred
Orders
- The claim is dismissed under Section 90 of the Employment Act.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
Kenya Building, Construction, Timber and Furniture Industries Employees Union v Singh (Cause 2014 of 2016) [2023] KEELRC 2158 (KLR) (22 September 2023) (Judgment)
Neutral citation: [2023] KEELRC 2158 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 2014 of 2016
J Rika, J
September 22, 2023
Between
Kenya Building, Construction, Timber and Furniture Industries Employees Union
Claimant
and
Kartar Singh
Respondent
Judgment
1. This Claim was initiated by the Claimant Union on 29th September 2016, on behalf of its member Mutua Ngolo [Grievant].
2. Ngolo was employed by the Respondent as an ungraded mason, on 1st August 2007.
3. It is pleaded at paragraph 12 of the Statement of Claim, that Ngolo was ‘’stopped from work, on 7th July 2012. ’’
4. The Respondent filed its Statement of Response on 20th December 2016, and a Notice of Preliminary Objection on 20th March 2023.
5. Objection is that the Claim is statute-barred, under Section 90 of the Employment Act.
6. The Claimant presented the Grievant before the Court, on 5th December 2022, when its case was heard and finalized.
7. The Notice of Preliminary Objection was filed on the eve of hearing of the Respondent’s case, scheduled for 22nd March 2023.
8. The Court directed that the hearing of the Respondent’s case shall proceed, and the belated Preliminary Objection argued jointly with the main Claim, through the Closing Submissions. The Respondent closed its case on 22nd March 2023, and Submissions were confirmed to have been filed and exchanged at the last mention before the Court, on 14th July 2023.
9. The Respondent submits that the Claim was filed out of the 3-year statutory period, prescribed under Section 90 of the Employment Act. The Claimant submits that the Respondent failed to cross-examine the Grievant, and did not therefore, ascertain the exact date of termination. It is submitted by the Claimant that the Respondent pleads it did not employ the Grievant, and could not therefore, ascertain the date the cause of action arose.
The Court Finds 10. There was no evidence required from the Respondent, to establish what is pleaded by the Claimant in plain terms, at paragraph 12 of the Statement of Claim:‘’That it is for this reason, that culminated in stopping the Grievant from work, on 7th July 2012. ’’
11. The date of filing of the Statement of Claim, 29th September 2016, is also not disputed.
12. The two dates, 7th July 2012 and 29th September 2016, are undisputed, and are not facts which needed establishment, through any evidence from the Parties.
13. Parties are not allowed to plead facts, and then turn around alleging that the facts they have pleaded are disputed, when it suits then to have the facts deemed to be disputed.
14. The pleading by the Respondent that it did not employ the Grievant, and/or that he was subcontracted, does not affect the fact that the Claim herein is statute-barred. Parties are allowed to plead in the alternative.
15. From 7th July 2012, 3 years lapsed on 6th July 2015. The Claim was presented over 1 year late, in September 2016
16. It is dismissed with no order on the costs, under Section 90 of the Employment Act.
DATED, SIGNED AND RELEASED TO THE PARTIES VIA E-MAIL, AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS 2020, THIS 22ND DAY OF SEPTEMBER 2023. JAMES RIKAJUDGE