[2015] KEELRC 51 (KLR)
The court held that the suit was filed more than eighteen years after the cause of action arose, far outside the six-year limitation period prescribed for contractual claims under Section 4(1) of the Limitation of Actions Act. The court found that the statutory conciliation process only suspends the running of time...
Source-derived case information.
- Citation
- [2015] KEELRC 51 (KLR)
- Parties
- Applicant: Kenya Petroleum Workers Union; Respondent: Total (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1831 of 2013
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- suit dismissed as time barred
- Legal Topics
- Limitation Periods, Wrongful Termination, Statutory Conciliation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Petroleum Workers Union
Applicant
Total (K) Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Does the limitation period run during statutory conciliation under the Trade Disputes Act?
- 2 Is the dispute time barred under the Limitation of Actions Act?
Ratio Decidendi
The court held that the suit was filed more than eighteen years after the cause of action arose, far outside the six-year limitation period prescribed for contractual claims under Section 4(1) of the Limitation of Actions Act. The court found that the statutory conciliation process only suspends the running of time for the thirty days within which the conciliator is required to act, not for the entire period the matter was before the Ministry of Labour. The Claimant did not seek leave to file out of time, and the law does not permit extension of time for such claims. The delay was deemed inordinate, and the argument that the statutory conciliation process justified the delay was rejected....
Court Disposition
suit dismissed as time barred
Orders
- The suit is dismissed in its entirety.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 1831 OF 2013
KENYA PETROLEUM
WORKERS UNION ..…………………………….….… CLAIMANT
VERSUS
TOTAL (K) LIMITED ……………………............. RESPONDENT
RULING
The Respondent has taken a preliminary objection against the suit filed by the Claimant on 18th November 2013.
The cause of action in the suit is wrongful and unfair termination from employment of Lawrence Paul Macharia Mutero, the Grievant based on contract of employment between the Grievant and Total Kenya Limited the Respondent.
In terms of the particulars of claim, on 18th September 1995 the employment of the Grievant was terminated by a letter of the same date written by the Personnel and Administrative Manager J. M. Mathenge. The letter is attached to the statement of claim and marked “APE”.
An appeal to the Administrative Manager was ignored by the Respondent and the Claimant wrote to the Joint Industrial Council (JIC) on 3rd November 1995 according to the governance procedure between the parties.
On 3rd January, 6th February and 10th April, 1996, the Joint Industrial Council heard the dispute and pointed that the Grievant be reinstated but this was not implemented.
A dispute was reported to the Ministry of Labour on 18th October 1996 and a Conciliator was appointed on 13th February 1997.
The matter delayed at the Ministry of Labour due to non-co-operation by the Respondent and the thirty (30) days within which a conciliator is to deal with the matter lapsed.
Issues for determination
Does the time run when the dispute is under statutory conciliation in terms of the Trade disputes Act? (now repealed)
Is the dispute time barred?
Issue i
It is common cause that the suit was filed more than eighteen (18) years from the date the cause of action arose.
The law on limitation applicable to the suit then is the limitation of Actions Act, Cap 22 of the laws of Kenya.
In terms of Section 4(1) thereof, all suits founded on contract have to be filed within six (6) years from the date the cause of action arose.
The Claimant did not file an application seeking leave to file this suit out of time. However, the Limitation of Actions Act does not allow the Court to extend time in respect of suits founded on contract.
Arguments that time does not run during the statutory conciliatory period is only limited to the thirty (30) days period within which the Conciliator is mandated to investigate the dispute and the conciliator either makes a report with findings for implementation by the parties or issue a certificate of unresolved dispute with a view to have the dispute be ventilated in Court.
The delay in filing this matter is so inordinate that the argument that filing was delayed due to the engagement of the parties in the statutory conciliation process does not hold water. It was incumbent on the Grievant through his union representatives to heed the limitation period and file the suit in time.
The preliminary objection is upheld with the result that the suit is dismissed in its entirety with no order as to costs.
The order for costs is refused because the Respondent was largely responsible for the delay in the conciliation process and largely contributed to the late filing of the suit.
Dated and Delivered at Nairobi this 9th day of December 2015
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE