[2015] KEELRC 1182 (KLR)
The court found that the claimant lacked standing to sue on behalf of the grievant because the collective agreement relied upon did not apply to the grievant, whose employment ended before the agreement's effective date. The court further held that the suit was time barred, as it was not brought within the six-year...
Source-derived case information.
- Citation
- [2015] KEELRC 1182 (KLR)
- Parties
- Applicant: Kenya Union of Commercial Food and Allied Workers Union; Respondent: Kirubia Farmers Co-operative Society Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 80 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- suit dismissed with costs to the respondent
- Judges
- B Ongaya
- Legal Topics
- Collective Agreements, Limitation Periods, Locus Standi, Unfair Termination, Retirement Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Commercial Food and Allied Workers Union
Applicant
Kirubia Farmers Co-operative Society Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant had standing to sue on behalf of the grievant based on the collective agreement.
- 2 Whether the suit was time barred under the Limitation of Actions Act.
- 3 Whether the collective agreement applied to the grievant's retirement and claims.
Ratio Decidendi
The court found that the claimant lacked standing to sue on behalf of the grievant because the collective agreement relied upon did not apply to the grievant, whose employment ended before the agreement's effective date. The court further held that the suit was time barred, as it was not brought within the six-year limitation period applicable to contractual claims under section 4 of the Limitation of Actions Act. The conciliation proceedings did not extend or suspend the limitation period, as the collective agreement forming the basis of the conciliation did not apply to the grievant's employment. Consequently, the suit was misconceived and dismissed with costs to the respondent.
Court Disposition
suit dismissed with costs to the respondent
Orders
- The claimant's suit is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
CAUSE NO. 80 OF 2014
KENYA UNION OF COMMERCIAL FOOD AND ALLIED WORKERS UNION.........CLAIMANT
-VERSUS-
KIRUBIA FARMERS CO-OPERATIVE SOCIETY LIMITED................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 24th April, 2015)
JUDGMENT
The claimant filed the memorandum of claim on 23. 06. 2014 on behalf of its member John Simon Kiriungi, the grievant. The claimant prayed that the respondent pays a sum of Kshs. 582,883. 00 being Kshs.37, 878. 00 pay in lieu of notice, provident of Kshs.82, 069. 00, Kshs. 3,400 not remitted to Chuka Municipal Council, pay for annual leave not taken for 5 years Kshs. 113,634. 00, leave allowance for 5 years Kshs.5, 000. 00, terminal benefits for 5 years Kshs. 189,390. 00, and full compensation of 12 months’ salaries for unfair termination Kshs.151, 512. 00.
The respondent filed the response to the claim on 22. 10. 2014 through Wahome Gikonyo & Company Advocates. The claimant prayed that the claimant’s suit be dismissed with costs.
The case came up for hearing on 12. 03. 2015 when the parties agreed that the case be determined on the basis of the documents on record without calling witnesses. The parties further agreed to file final written submissions and they acted accordingly.
It is not disputed between the parties that the grievant was employed by the respondent and the employment was terminated on 14. 10. 2003 when the respondent retired the grievant from employment. The claimant reported a dispute to the Minister for Labour on 14. 05. 2010 with respect to the grievant’s retirement and the payment of the grievant’s retirement benefits. The Minister’s appointed conciliator rendered the recommendations on 7. 03. 2012 and the claimant wrote on 8. 05. 2012 agreeing with the conciliator’s recommendations. The respondent declined to comply with the recommendations and the conciliator issued a referral certificate on 14. 03. 2014 paving way for filling of the present suit. The suit was filed on 23. 06. 2014.
The 1st issue for determination is whether the claimant was entitled to sue on behalf of the grievant as retired by the respondent on 14. 10. 2003 and long before the parties to the suit concluded a recognition and collective agreement. The court has considered the record and it is clear that the claimant in urging its case relied upon the collective agreement which provides in clause 27 that the effective date was 1. 10. 2007 to 30. 09. 2009. The court finds that as submitted for the respondent, the collective agreement did not apply to the grievant’s retirement and the grievant having left employment in 2003, the claimant lacked the relevant standing to sue and make claims on behalf of the grievant on the basis of the collective agreement on record.
The 2nd issue for determination is whether the suit was time barred. The court has found that the collective agreement did not apply. As submitted for the respondent, the suit could only be brought on the contract of employment between the grievant and the respondent and within 6 years from 14. 10. 2003 as per the limitation period of 6 years then applicable under provisions of section 4 of the Limitation of Actions Act, Cap 22 Laws of Kenya. The court finds that the suit was not founded on such contract but upon the collective agreement which was inapplicable and, the suit was filed on 23. 06. 2014 long after the lapsing of the allowed 6 years. Further the court finds that the conciliation proceedings did not help to overcome the running of the period of limitation because the recognition and collective agreement between the parties to the suit and which constituted the basis of the conciliation proceedings did not apply to the grievant’s employment. Thus, the court finds that the suit was misconceived as it was time barred.
In conclusion judgment is entered for the respondent against the claimant and the suit is dismissed with costs.
Signed, dated and delivered in court at Nyeri this Friday, 24th April, 2015.
BYRAM ONGAYA
JUDGE