[2018] KEELRC 994 (KLR)
The court held that the period spent in mandatory conciliation, which is beyond the claimant's control, should not be included in calculating the limitation period. The conciliator's report was issued on 25th March, 2015, and thus the three-year limitation period would lapse on 25th March, 2018. Since the claim was...
Source-derived case information.
- Citation
- [2018] KEELRC 994 (KLR)
- Parties
- Claimant: Kenya National Private Security Workers Union; Respondent: The Watchdog Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1308 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- NJ Abuodha
- Legal Topics
- Limitation Periods, Conciliation Process, Redundancy Dues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya National Private Security Workers Union
Claimant
The Watchdog Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is barred by limitation under section 90 of the Employment Act.
- 2 Whether the period spent in conciliation and before the Chief Magistrates Court should be excluded from the limitation period.
Ratio Decidendi
The court held that the period spent in mandatory conciliation, which is beyond the claimant's control, should not be included in calculating the limitation period. The conciliator's report was issued on 25th March, 2015, and thus the three-year limitation period would lapse on 25th March, 2018. Since the claim was filed on 17th July, 2017, it was within the limitation period. The preliminary objection by the respondent was therefore without merit and dismissed with costs.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE 1308 OF 2017
KENYA NATIONAL PRIVATE SECURITY
WORKERS UNION……………………………………………..CLAIMANT
VERSUS
THE WATCHDOG LIMITED…………….....…..…..……..RESPONDENT
RULING
1. The respondent herein filed a preliminary objection on the point of law that the cause of action herein arose on 1st October, 2013 and the suit having been filed on after expiry of three years from the aforementioned date was barred by virtue of section 90 of the Employment Act.
2. The claimant herein contended that this claim was subject to conciliation as directed by the Minister, the Conciliators report containing recommendations was issued on 25th March, 2015 recommending that the management should pay the grievant redundancy dues as per the protective security wages order. According to the claimant time started to run only when the conciliator issued a certificate in terms of part VII of the Labour Relations Act since conciliation was mandatory before filing suit.
3. The claimant further submitted that on 7th September, 2015 he filed an application before the Chief Magistrates Court but was later advised to file the dispute before this court hence the time spent in the Chief Magistrates Court should not be counted towards the limitation period. It would seem that the claimant does not deny the possibility of the claim herein having been filed out of time only he is saying that certain periods should be excluded in reckoning time namely the time taken during conciliation process and the period he erroneously filed the dispute before the Chief Magistrate’s Court.
4. It is true that once a dispute is submitted for conciliation by the Minister and a Conciliator appointed, the pace and conclusion of the conciliation process is beyond the control of the claimant and it would be unfair to include the period spent during conciliation in reckoning limitation. The Conciliator issued his report on 25th March, 2015. Three years ought to have lapsed on 25th March, 2018. This claim was filed on 17th July, 2017 in the circumstance within the limitation period.
5. The preliminary objection is therefore found without merit and is hereby dismissed with costs.
6. It is ordered.
Dated at Nairobi this 28th day of September, 2018
Abuodha Jorum Nelson
Judge
Delivered this 28th day of September, 2018
Abuodha Jorum Nelson
Judge
In the presence of:-
…………………………………………………………for the Claimant and
……………………………………………………………for the Respondent.