[2022] KEELRC 3859 (KLR)
The court found that the claimant sought relief for matters arising in 2005 and 2006, and that the statutory limitation period under section 90 of the Employment Act is three years. Therefore, the limitation period expired in 2009. The claim, filed in 2016, was thus time barred. The court also noted that the...
Source-derived case information.
- Citation
- [2022] KEELRC 3859 (KLR)
- Parties
- Applicant: Kenya Engineering Workers Union; Respondent: Kalu Works Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1645 of 2016
- Procedural Posture
- Cause / Ruling on Preliminary Objection
- Outcome
- Claim dismissed for being time barred and filed through deceitful means.
- Judges
- Nzioki wa Makau
- Legal Topics
- Limitation Periods, Jurisdiction of Employment Court, Preliminary Objection, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Engineering Workers Union
Applicant
Kalu Works Limited
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is statute barred under section 90 of the Employment Act.
- 2 Whether the court has jurisdiction to hear a claim filed outside the statutory limitation period.
- 3 Whether the claim was filed through deceitful means.
Ratio Decidendi
The court found that the claimant sought relief for matters arising in 2005 and 2006, and that the statutory limitation period under section 90 of the Employment Act is three years. Therefore, the limitation period expired in 2009. The claim, filed in 2016, was thus time barred. The court also noted that the claimant attempted to mislead the court by indicating a later date in the pleadings. As a result, the suit was dismissed for being statute barred and for being filed through deceitful means, with costs awarded to the respondent.
Court Disposition
Claim dismissed for being time barred and filed through deceitful means.
Orders
- The suit is dismissed for being time barred.
- The claimant union shall pay costs of the suit to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
Kenya Engineering Workers Union v Kalu Works Limited (Cause 1645 of 2016) [2022] KEELRC 3859 (KLR) (15 June 2022) (Ruling)
Neutral citation: [2022] KEELRC 3859 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1645 of 2016
Nzioki wa Makau, J
June 15, 2022
Between
Kenya Engineering Workers Union
Claimant
and
Kalu Works Limited
Respondent
Ruling
1. The preliminary objection dated March 21, 2022 taken by the respondent is to the following effect:-i.That this claim is incompetent, bad suit is statute barred pursuant to section 90 of the Employment Act and therefore unsustainable.ii.That this court lacks jurisdiction to hear and determine the suit by virtue of the cause of action being barred by time and the same should be struck out with costs.
2. The claimant did not file any response to the preliminary objection despite being granted the opportunity by the court. The issue raised by the respondent goes to the root of the claim. If this court has no jurisdiction then there will be no need to retain the case before the employment courts. It is not controverted that section 90 of the Employment Act provides a limit as to when a suit can be filed for a general claim as the matter before me. Section 90 of the Employment Act 2007 states as follows:-“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted un less it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” (Emphasis supplied)
3. The claimant seeks relief in this case regarding matters that arose in 2005 and 2006. Under the law, the limitation set in 3 years after and taking the latter year the limitation set in sometime in 2009. As such mounting a claim as was done in 2016 was not only misplaced but pure mischief by the claimant as the grievant was moved from managerial to staff in July 2005. The mischief in indicating July 2015 in one paragraph of the pleadings was so as to mislead the Registry of this court to admit the otherwise stale claim. On that ground alone the suit stands dismissed for being time barred and because its filing was obtained through deceitful means the claimant union will pay costs of the suit to the respondent.It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JUNE 2022. Nzioki wa MakauJUDGE