https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1732

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT KERICHO ELRC CAUSE NO. E028 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) KENYA PLANTATION & AGRICULTURAL WORKERS UNION..……..……………………………. CLAIMANT VERSUS LIPTON TEAS & INFUSIONS KENYA PLC…………………………………………. RESPONDENT RULING Introduction 1. The Respondent filed a Notice of Preliminary Objection dated 28th January 2026 on the following grounds that: 1.This Honourable court lacks the jurisdiction to admit, hear and determine this matter as it has been filed outside the mandatory statutory limitation prescribed by Section 90 of the Employment Act 2007. 2.The Claimant’s cause of action arises out of employment contracts between the grievant and the Respondent, which contract was terminated on 3rd November 2022. KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 1 OF 14 3.The cause of action is therefore time- barred by virtue of Section 90 of the Employment Act, 2007, as the claim arose in November 2025 and the cause of action has been instituted in December 2025. 4.The suit is thus frivolous, and incompetent for the above mentioned reasons. 5.The suit ought to be dismissed with costs to the respondent. Claimant’s replying affidavit 2. The Claimant opposed the preliminary objection vide replying affidavit sworn by Thomas Kipkemboi, the Claimant’s Deputy General Secretary, dated 3rd March 2026. 3. The Claimant argued that the suit is not time-barred since the grievant, who was unfairly dismissed, had only recently been traced, and that no prejudice has been suffered by the Respondent. 4. The Claimant emphasized that the grievant continues to suffer injustice from wrongful termination, that the documents filed demonstrate unfair treatment, and that dismissing the case prematurely would deny the grievant a fair hearing. KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 2 OF 14 5. The Claimant urged the court to allow the matter to proceed on its merits and assured expeditious prosecution to avoid prejudice to either party. 6. Parties canvassed the preliminary objection by way of written submissions. Respondent’s submissions 7. The Respondent submitted that the Claimant was dismissed on 3rd November 2022, and therefore any claim arising from the contract of service must be filed within the statutory limitation period. While section 4(1)(a) of the Limitation of Actions Act prescribes six years for contractual claims, section 90 of the Employment Act expressly limits employment-related claims to three years from the date of the complained act, or twelve months in the case of continuing injury. The Court of Appeal in Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] KECA 257 (KLR) underscored that section 90 is couched in mandatory terms, requiring strict compliance. Accordingly, the Respondent contended that the present suit is incompetent and time-barred, having not been instituted within three years of dismissal, that is, by 3rd November 2025. KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 3 OF 14 8. The Respondent submitted that, pursuant to the Court of Appeal decision in Divecon v Samani (1995-1998) EA 48, the court has no jurisdiction to grant leave or extend time in actions founded on contract, as section 4(1) of the Limitation of Actions Act is couched in clear and mandatory terms. Similarly, in Rift Valley Railways (Kenya) Limited v Hawkins Wagunza Musuya & Another [2016] KECA 213, the Court of Appeal affirmed that where a statute prescribes limitation periods, no court has power to extend time unless expressly provided by statute. On this basis, the Respondent argued that this Honourable Court lacks jurisdiction to admit, hear, or determine the present claim, which is time-barred. 9. On costs, reliance was placed on section 12(4) of the Employment and Labour Relations Court Act, which empowers the court to make such orders as it considers just. 10.The Respondent urged the court to dismiss the Claimant’s suit with costs. Claimant’s submissions KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 4 OF 14 11.The Claimant/Respondent submitted that although section 90 of the Employment Act requires employment claims to be filed within three years from the date of dismissal, the Claimant first pursued the mandatory dispute resolution mechanisms under sections 62 to 73 of the Labour Relations Act, which provide for reporting of trade disputes to the Minister and conciliation before referral to the Court. It was argued that section 87 of the Employment Act recognizes this procedure, and therefore, the suit was properly instituted after conciliation. 12. The Claimant explained that delays were occasioned by circumstances beyond its control, including tracing the grievant, and emphasized that its interest in prosecuting the matter has remained consistent. Relying on Article 159(2)(d) of the Constitution, which directs courts to administer justice without undue regard to procedural technicalities, the Claimant contended that dismissing the suit unheard would occasion a miscarriage of justice. KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 5 OF 14 13. Accordingly, the Claimant urged the Court to dismiss the Respondent’s application with costs and allow the matter to proceed on its merits. Analysis and determination 14.The court has considered the notice of preliminary objection, replying affidavit and the rival submissions on record; the issue for determination is whether the notice of preliminary objection is meritorious and in particular whether the case is time barred. 15.In Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696, the court stated as follows: “So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit or to refer the dispute to litigation.” KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 6 OF 14 16.In the Supreme Court case of Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR), the court held as follows: “A true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection, against profligate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword for winning a case otherwise destined to be resolved judicially, and on the merits.” 17. Section 89 of the Employment Act provides as follows: “Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 7 OF 14 complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” 18.In G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] KECA 827 (KLR) the Court of Appeal stated as follows: “The statutory framework on the conciliation process is as provided for by the provisions of the Labour Relations Act, 2007. Section 62 (3) of the Labour Relations Act, 2007 provides that a trade dispute concerning the dismissal or termination of an employee shall be reported to the Minister within 90 days of the dismissal or any longer period that the Minister, on good cause, permits. It is not clear exactly when the respondents reported this matter for conciliation. Time does not stop running on the commencement of reconciliation or other alternative dispute resolution mechanisms provided for under the Constitution or any other law. This is fortified by the decision KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 8 OF 14 of this court in the case of Rift Valley Railways (Kenya) Ltd V Hawkins Wagunza Musonye and another [2016] eKLR which held as follows: “While there is no doubt that section 15 of the Employment and Industrial Relations Act encourages alternative dispute resolution, it must be court- based and conducted within the law. Time does not stop running merely because parties are engaged in an out of court negotiations. It was incumbent upon the respondents to bear in mind the provisions of Section 90 of the Employment Act even as they engaged in the negotiations. The claim went stale three years from the date of the termination of the respondents’ contracts of service.” 19.In Michira & 41 Others v Aegis Kenya Ltd t/a Leopard Beach Hotel [2023] KEELRC 2551 (KLR) the court held that the cause of action arises upon termination of employment. The last day the employee exits the shop floor marks the accrual of the claim, and any dues arising therefrom must be pursued within three years in accordance with section 90 of the Employment Act, 2007. In the case of a KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 9 OF 14 continuing injury, the law requires such claims to be instituted within twelve months from cessation of the injury. While conciliation is permitted under statute, it does not suspend the running of time. Parties remain at liberty to file suit within the limitation period to secure their rights under section 90, and thereafter invoke section 15 of the Employment and Labour Relations Court Act, 2011, which allows conciliation while proceedings are pending. Thus, a party with good cause may move the Court to preserve its claim and simultaneously pursue conciliation, thereby avoiding the bar of limitation. Accordingly, the reference of the Claimant’s matter to conciliation did not stop time from running and cannot avail a defence against a plea of limitation, as affirmed in Monicah Wanjiku Kanyingi v Our Lady of Mercy Secondary School [2018] eKLR. 20. In the instant case, the grievant, a member of the Claimant union, was summarily dismissed by the Respondent on 3rd November 2022 for alleged violation of the Respondent’s Code of Business Principles. The Claimant, on behalf of the grievant, reported the matter as a trade dispute to the Ministry KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 10 OF 14 of Labour, where a conciliator was duly appointed and issued recommendations vide a letter dated 9th February 2024. The Respondent contends that the suit is time-barred, arguing that the limitation began to run from the date of dismissal, 3rd November 2022. Conversely, the Claimant maintains that the suit is properly before the Court, submitting that the matter was subjected to conciliation in accordance with sections 62 to 73 of the Labour Relations Act, and that section 87 of the Employment Act recognizes this procedure. The Claimant therefore argues that limitation should be reckoned from the date of the conciliator’s recommendations, and not from the date of dismissal, as the law requires disputes to first be reported to the Labour Office before being referred to ELRC. 21. The position of the law and with support of case laws is that the cause of action arose upon the grievant’s summary dismissal by the Respondent and case filed outside limitation time cannot be allowed. The excuse that the matter was subjected to conciliation does not absolve the Claimant from the obligation to file suit within the statutory limitation period while KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 11 OF 14 conciliation was ongoing. Section 89 of the Employment Act, 2007, is couched in mandatory terms, requiring that any claim arising out of employment be instituted within three years of the act complained of, save for continuing injury, which must be filed within twelve months of cessation. Accordingly, where the grievant was terminated on 3rd November 2022, the latest date for filing suit was 3rd November 2025. The Court of Appeal in G4S Security Services (K) Limited v Joseph Kamau & 468 others(supra), Divecon v Samani (supra) and Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musuya & Another(supra) affirmed that limitation statutes admit of no discretion, and conciliation or negotiations do not stop time from running. Thus, the present claim, having been filed outside the prescribed period that is on 4th December 2025. Time run from 3rd November 2025 and is incompetent and time-barred. It is unfortunate the case was late with only a few weeks. Unfortunately, the court’s hands are tied by the law and there is no room to extend the time no matter how sympathetic the court feels towards the Claimant. KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 12 OF 14 22.Flowing from the foregoing, the Court finds that the Notice of Preliminary Objection dated 28th January 2026 is meritorious and accordingly succeeds. The court holds that the Claimant’s suit is incompetent and time-barred under Section 90(now Section 89) of the Employment Act, 2007, which is couched in mandatory terms and admits of no discretion. Consequently, the suit is struck out with no orders as to costs. Order accordingly. Dated, Signed and Delivered virtually at Nakuru this 19th Day of June, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered PAGE 13 OF 14 KRC ELRC CAUSE NO E028 OF 2025 RULING through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE KRC ELRC CAUSE NO E028 OF 2025 RULING PAGE 14 OF 14