[2017] KEELRC 1793 (KLR)
The court held that where a dispute is referred to conciliation under the Labour Relations Act, the limitation period is suspended until the conciliation process is concluded, either by withdrawal or by the issuance of a certificate of non-resolution. In this case, the Conciliator issued a certificate of...
Source-derived case information.
- Citation
- [2017] KEELRC 1793 (KLR)
- Parties
- Applicant: Kenya County Government Workers Union; Respondent: Nairobi Water and Sewerage Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1334 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- L Ndolo
- Legal Topics
- Limitation Periods, Conciliation Process, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya County Government Workers Union
Applicant
Nairobi Water and Sewerage Company Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is statute barred under Section 4(1) of the Limitation of Actions Act and Section 90 of the Employment Act, 2007.
- 2 Whether time stops running during the conciliation process under the Labour Relations Act.
Ratio Decidendi
The court held that where a dispute is referred to conciliation under the Labour Relations Act, the limitation period is suspended until the conciliation process is concluded, either by withdrawal or by the issuance of a certificate of non-resolution. In this case, the Conciliator issued a certificate of non-resolution on 24th April 2013, and the claim was filed later that year. Therefore, the claim was filed within the statutory limitation period. The preliminary objection on limitation was thus overruled.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled with costs in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 1334 OF 2013
KENYA COUNTY GOVERNMENT WORKERS UNION……...........…CLAIMANT
VERSUS
NAIROBI WATER AND SEWERAGE COMPANY LIMITED….…RESPONDENT
RULING
1. This ruling relates to a preliminary objection raised by the Respondent in paragraph 6 of its response dated 9th May 2014 and filed in Court on 13th May 2014. The substance of the objection is that the Claimant’s claim is statute barred since the cause of action arose at least 7 years before filing of the claim on 20th August 2013.
2. By consent of the parties, the objection was urged by way of written submissions. In the submissions filed on behalf of the Respondent on 20th April 2016, it is submitted that the claim offends the provisions of Section 4(1) of the Limitation of Actions Act and Section 90 of the Employment Act, 2007.
3. Counsel for the Respondent referred the Court to the decision in Thuranira Karauri v Agnes Ncheche [1997] eKLRwhere it was held that limitation is a matter of jurisdiction of the Court to entertain the claim before it.
4. In response, the Claimant submits that the dispute forming the subject matter of this claim was first subjected to the internal appeal mechanism provided by the Respondent and was then referred to conciliation in November 2012. The Conciliator finally issued a certificate of non-resolution of the dispute on 24th April 2013.
5. In submitting that time did not begin to run until the issuance of the aforesaid certificate, Counsel for the Claimant relied on the decisions inKenya Plantation & Agricultural Workers Union v Mununga Leaf Base [2013] eKLRandPauline Waithira Muraguri v Murang’a Farmers Co-Operative Union Ltd [2014] eKLRwhere it was held that once a party invokes the dispute resolution mechanism set out under the Labour Relations Act, time stops to run until the final outcome of the conciliation process.
6. I agree that a cause of action arising from a dispute that has been referred to conciliation does not accrue until either the parties formally withdraw from conciliation or the Conciliator issues a final word. In the case now before me, the Conciliator issued a certificate of non-resolution of the dispute on 24th April 2013. The Court therefore finds that the claim having been filed in the same year was well within time.
7. The preliminary objection therefore fails and is overruled with costs in the cause.
8. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI
THIS 10THDAY OF FEBRUARY 2017
LINNET NDOLO
JUDGE
Appearance:
Mr.Otieno for the Claimant
Mr. Omuganda for the Respondent