[2014] KEELRC 330 (KLR)
The court held that Section 90 of the Employment Act 2007, which prescribes a three-year limitation period for employment claims, does not apply retrospectively to causes of action that arose before the Act became operational on 2/6/2008. The claimant's cause of action arose prior to this date, and therefore, the...
Source-derived case information.
- Citation
- [2014] KEELRC 330 (KLR)
- Parties
- Claimant: Moses Hinzano; Respondent: Mombasa Slaughter House
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 418 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- AN Makau
- Legal Topics
- Limitation Periods, Retrospective Application, Conciliation Referral, Employment Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Hinzano
Claimant
Mombasa Slaughter House
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time-barred under Section 90 of the Employment Act 2007.
- 2 Whether Section 90 of the Employment Act 2007 applies retrospectively to causes of action arising before its commencement.
- 3 Whether referral of a dispute to conciliation suspends the running of the limitation period.
Ratio Decidendi
The court held that Section 90 of the Employment Act 2007, which prescribes a three-year limitation period for employment claims, does not apply retrospectively to causes of action that arose before the Act became operational on 2/6/2008. The claimant's cause of action arose prior to this date, and therefore, the applicable limitation period is that provided under Section 4 of the Limitation of Actions Act, which is six years for employment contract disputes. The court further found that there is no express provision in the Labour Relations Act to suspend the limitation period during conciliation, unlike the repealed Trade Disputes Act. As a result, the preliminary objection based on...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT MOMBASA
CAUSE NO. 418 OF 2013
MOSES HINZANO …................................................................CLAIMANT
VERSUS
MOMBASA SLAUGHTER HOUSE …...............................RESPONDENT
R U L I N G
This is a Preliminary Objection (P.O.) filed by the respondent by which she prays for the suit herein to be struck out for being brought out of time. According to the respondent, Section 90 of the employment Act limits the time within which to bring a suit based on Employment to only 3 years. Consequently, according to her, because the cause of action arose on 5/2/2008, when the claimant services were terminated by the respondent, the same had become time barred by the time this suit was filed on 29/11/2013.
The claimant has opposed the P.O. on two grounds. Firstly, the claimant contends that the suit had initially been referred for conciliation by the Minister for Labour. Consequently, the statutory period stopped running from the time the suit was referred to the minister for conciliation. Secondly, the claimant has contended that Section 90 of the Employment Act 2007 cited by the respondent does not apply to this suit because the cause of action arose before the said Act became operational on 2/6/208. consequently the law applicable according to the claimant is Section 4 of the Limitation of Actions Act which provided for limitation period of 6 years for employment contracts disputes.
The P.O. was disposed by written submissions which the court has carefully considered together with the law and the judicial precedents cited. This court is without any doubt that there is much jurisprudence developed by this court to the effect that Section 90 of the employment Act did not operate retrospectively to causes of action which arose before 2/6/2008 when the 2007 Act became operational. This does not therefore see why it should make any different decision on the matter. The reason for the foregoing is that law does not operate retrospectively. Consequently the P.O. must fail.
On whether referral of a dispute to conciliation by the minister under the Labour Relations Act suspends the limitation period from running, the court observes that there is no express provision to that effect. If that was the intention of the legislature, nothing would have been easier than to state so expressly as it was provided for under the Trade Disputes Act which was repealed by the LRA 2007.
In conclusion and in view of the finding above that Section 90 of the Employment Act is in-applicable to the cause of action herein, the P.O. is dismissed with costs.
Dated, Signed and delivered this 25th July 2014.
O. N. Makau
Judge