[2017] KEELRC 1264 (KLR)
The court found that the claimant's suit was filed outside the statutory three-year limitation period prescribed by section 90 of the Employment Act, 2007. The cause of action arose on 02.02.2009, and the suit was filed on 02.09.2014, well after the limitation period had lapsed. The court held that conciliation...
Source-derived case information.
- Citation
- [2017] KEELRC 1264 (KLR)
- Parties
- Applicant: Kenya Union of Domestic Hotels Educational Institutions, Hospitals and Allied Workers; Respondent: Consolata Hospital
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 100 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- suit dismissed
- Judges
- B Ongaya
- Legal Topics
- Limitation of Actions, Unfair Termination, Conciliation Procedure, Terminal Dues, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Domestic Hotels Educational Institutions, Hospitals and Allied Workers
Applicant
Consolata Hospital
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claim was filed within the statutory limitation period under section 90 of the Employment Act, 2007.
- 2 Whether the claimant was unfairly and wrongfully terminated from employment.
- 3 Whether conciliation proceedings under the Labour Relations Act, 2007 suspend the running of limitation period for employment claims.
Ratio Decidendi
The court found that the claimant's suit was filed outside the statutory three-year limitation period prescribed by section 90 of the Employment Act, 2007. The cause of action arose on 02.02.2009, and the suit was filed on 02.09.2014, well after the limitation period had lapsed. The court held that conciliation proceedings under the Labour Relations Act, 2007 do not suspend or extend the limitation period. As a result, the suit was time-barred and could not be entertained. The respondent's failure to participate in the proceedings did not affect the mandatory application of the limitation statute. Consequently, the suit was dismissed with no order as to costs.
Court Disposition
suit dismissed
Orders
- The suit is hereby dismissed with no orders on costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NYERI
CAUSE NO.100 OF 2014
KENYA UNION OF DOMESTIC HOTELS EDUCATIONAL INSTITUTIONS,
HOSPITALS AND ALLIED WORKERS.......................................CLAIMANT
VERSUS
CONSOLATA HOSPITAL........................................................RESPONDENT
(Before Hon. Justice Byram Ongaya on Wednesday, 31st May, 2017)
JUDGMENT
The claimant filed the memorandum of claim on 02. 09. 2014 alleging wrongful and unfair termination of its member one Cyrus Mwihuri Njeru, the grievant. The grievant stated in his evidence that he was employed by the respondent in August 2004 in the maintenance department and his duties entailed repairing of the telephone systems. The grievant’s evidence was that he was verbally terminated from employment on 02. 02. 2009 when the respondent’s administrator one Fr. John Mbai handed to him the letter dated 16. 01. 2009 and told him to go away and to be recalled in future. The grievant testified that he was not recalled hence the present suit. In the memorandum of claim, judgment is prayed against the respondent for payment of the grievant’s terminal dues including:
a) One month pay in lieu of termination notice Kshs.6, 000. 00.
b) Gratuity for 5 years of service Kshs.15, 000. 00.
c) Underpayment for 3 years being Kshs.7, 698. 00 for March 2006 to April, 2006; and Kshs. 171, 054. 00 for May 2006 to February 2009.
d) Underpayment for house allowance being Kshs.2, 954. 00 for March 2006 to April, 2006; and Kshs. 56, 270. 00 for May 2006 to February 2009.
e) Pay for annual leave for 3 years Kshs.56, 270. 00.
f) Six months compensation for unfair termination Kshs.36, 000. 00.
g) Costs of the suit.
The claimant reported a trade dispute to the Cabinet Secretary for Labour on 04. 11. 2011 and said to be per section 62(1) of the Labour Relations Act, 2007. By the letter dated 12. 03. 2012 the dispute was accepted and the dispute having not been resolved, the certificate to refer the same to the court was issued by the letter dated 18. 03. 2014.
The claimant’s case is that he was dismissed on 02. 02. 2009. The three years of limitation of actions in employment contracts as prescribed in section 90 of the Employment Act, 2007 lapsed on or about 03. 09. 2012. It is now the position in law that the conciliation proceedings under the Labour Relations Act, 2007 do not adjourn or stay the running of the time of limitation. Accordingly, the court returns that the suit was filed outside the time of limitation as prescribed in section 90 of the Employment Act, 2007 and the suit will therefore fail. As the respondent did not enter appearance and did not file a response or attend any of the steps in the suit, the suit will be dismissed with no orders on costs.
In conclusion, the suit is hereby dismissed with no orders on costs.
Signed, datedanddeliveredin court atNyerithisWednesday, 31st May, 2017.
BYRAM ONGAYA
JUDGE