[2015] KEELRC 1608 (KLR)
The court found that the cause of action arose on 6th January 2009 when the claimant was summarily dismissed. The suit was filed on 13th February 2015, more than six years later. The court noted that the conciliation process only commenced after three years had already lapsed from the date of dismissal, by which...
Source-derived case information.
- Citation
- [2015] KEELRC 1608 (KLR)
- Parties
- Applicant: Kenya Electrical Trades & Allied Workers Union; Respondent: Kenya Power and Lighting Company
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 11 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time
- Outcome
- application for extension of time refused; suit dismissed as time-barred
- Legal Topics
- Limitation of Actions, Conciliation Process, Summary Dismissal, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Electrical Trades & Allied Workers Union
Applicant
Kenya Power and Lighting Company
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the suit is time-barred under Section 90 of the Employment Act, 2007.
- 2 Whether the conciliation process suspends the running of time for limitation purposes.
- 3 Whether the applicant is entitled to extension of time to file the suit out of time.
Ratio Decidendi
The court found that the cause of action arose on 6th January 2009 when the claimant was summarily dismissed. The suit was filed on 13th February 2015, more than six years later. The court noted that the conciliation process only commenced after three years had already lapsed from the date of dismissal, by which time the claim was already statute barred under Section 90 of the Employment Act, 2007. The court held that the conciliation process does not suspend or extend the statutory limitation period. Consequently, the application for extension of time was refused, and the suit was dismissed in its entirety as being time-barred.
Court Disposition
application for extension of time refused; suit dismissed as time-barred
Orders
- The application for extension of time is refused.
- The suit stands dismissed in its entirety.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
MISC. APPLICATION NO. 11 OF 2015
KENYA ELECTRICAL TRADES & ALLIED WORKERS UNION …….….. CLAIMANT
VERSUS
KENYA POWER AND LIGHTING COMPANY................…………….… RESPONDENT
RULING
1. The Respondent filed grounds of opposition to this suit on 27th February 2015 to wit;
“The Claimant’s employment was terminated on 1st January 2009. Any cause of action intended to be asserted herein is accordingly time barred by dint of the provisions of Section 90 of the Employment Act.”
2. The suit was filed on 13th February 2015 simultaneously with an Application to file the suit after the limitation period.
3. The Application is supported on grounds set out on the face of the Notice of Motion to wit;
“6. that the delay in filing suit was caused by the Claimant / Applicant and Respondent engaging in conciliatory processes as seen from minutes for their meeting on the 5th November 2009.
7. that the conciliatory process forms part and parcel of the arbitration process therefore Claimant cannot be locked out on grounds of not having sought redress within time limit set in statute.”
4. The Application is buttressed by the Affidavit sworn by Kosgey Kolil the Deputy Secretary General of the Claimant / Applicant on13th February, 2015.
5. The Applicant submits that during the conciliation process, running of time is suspended until the outcome of the process is known.
Determination
6. The cause of action arose on 6th January 2009, when the Claimant was summarily dismissed from employment. The suit was filed on13th February 2015 more than six (6) years from the date the cause of action arose.
7. It is not indicated when the report of dispute was made to the Minister of Labour but a conciliator was appointed on 11th January 2012 going by the letter dated 18th April 2012 annexed to the supporting Affidavit and marked “KKI”.
8. The conciliation process therefore commenced after three (3) yearsfrom the date the cause of action arose. By that time the matter was already statute barred upon expiry of three (3) years from the date the cause of action arose by dint of Section 90 of the Employment Act, 2007.
9. The application for extension of time is refused with the result tha the suit stands dismissed in its entirety.
Dated and Delivered at Nairobi this 29th day of May, 2015.
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE