Rosslyn Valley Developments v Amayi & 7 others (Appeal E177 of 2025) [2026] KEELRC 1365 (KLR) (15 May 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAIROBI APPEAL NUMBER E177 OF 2025 ROSSLYN VALLEY DEVELOPMENTS..........................................................................APPELLANT -VERSUS- SHADRACK OYU AMAYI........................................................................................1ST RESPONDENT ABEL MUNOGE AHUTA........................................................................................2ND RESPONDENT SILVANUS ALEMBA...............................................................................................3RD RESPONDENT GERISHOM MIHESO................................................................................................4TH RESPONDENT SEBASTIAN BILLY MASIGA.................................................................................5TH RESPONDENT PETER KAMAU.........................................................................................................6TH RESPONDENT BENSON KIMOYANI AMBANI..............................................................................7TH RESPONDENT DENIS OCHIENG....................................................................................................8TH RESPONDENT *(Being an Appeal from the* *Ruling and Orders of the Hon. T. Orlando (PM) delivered on 8th May, 2025 in Nairobi CMELR E2540/2024)* CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Appellant herein, being dissatisfied with the Ruling and Orders of the Hon. T. Orlando (PM) delivered on 8th May, 2025 in Nairobi CMELR E2540/2024 between the parties filed a memorandum of appeal dated the 5th of June 2025 seeking the following orders:- 2. The Appeal be allowed with costs to the Appellant both in this Honourable Court and the Lower Court. 3. The Ruling and Orders issued in Nairobi CMELR Cause No. E2540 of 2024, be set aside and the suit against the Appellant be dismissed with costs. GROUNDS OF THE APPEAL 1. The Honourable Trial Magistrate erred in law and fact, in its finding that the claim was not statutorily barred despite being filed out of the three-year limitation period prescribed at Section 90 of the Employment Act. 2. The Honourable Trial Magistrate erred in law in holding that time only starts running after a matter that was referred to conciliation has been determined. 3. The Honourable Trial Magistrate erred in law and fact in disregarding the law, specifically Section 90 of the Employment Act, that provides that time starts running after a cause of action arises. 4. The Honourable Trial Magistrate erred in law in finding that the issue of settlement of the dispute through the Labour office was a substantive matter that required to be determined at full trial 5. The Honourable Trial Magistrate erred in law and fact in dismissing the Appellant's Preliminary Objection dated 14th February 2025 with costs. **BACKGROUND TO THE APPEAL** 1. The Respondents filed suit vide a memorandum of claim dated 16th December 2024 seeking the following orders:- 2. A declaration that the Respondent’s failure to remit terminal dues to the Claimants amounts to unfair labour practices. 3. The sum of Kshs. 9,303,035.22 particularized in paragraph 51 above. 4. Costs of this claim. 5. Interest on the mount awarded at court rates. (pages 173-178 of Appellant’s ROA dated 26th November 2025). 1. In response to the claim, the Appellant filed a notice of preliminary objection dated 14th February 2025 challenging the jurisdiction of the court to entertain the claims on the premise that the period of limitation under Section 90 of the Employment Act 2007 had lapsed (page 13-14 of the ROA). 2. The Appellant also filed a Notice of Motion dated 14th February 2025 seeking dismissal of the claims by the 1st, 3rd ,4th , 5th ,6th , 7th and 8th Claimants for the reasons that their disputes with the Appellant were the subject of conciliation before the labour office and were fully resolved, and their contracts of employment lapsed by effluxion of time (pages 15-49 of ROA). 3. The Respondents countered the Appellant’s preliminary objection and Notice of Motion as aforesaid vide grounds of apposition dated 27th February 2025 and a replying affidavit sworn by the 1st Claimant on 26th February 2025 (pages 50-75 of ROA). 4. The court issued directions that the preliminary objection and application be disposed of by way of written submissions. The parties complied (pages 171-172 of ROA) 5. The Trial Magistrate Court delivered its ruling on the 8th of May 2025, dismissing the Appellant’s preliminary objection for the reason that the disputes had been referred to conciliation. The trial court held that time, for purposes of computation of the three (3) year limitation period established by Section 90 of the Employment Act 2007, began running after the determination of the conciliation process. On the application for dismissal of the claims by the 1st and 3rd-8th Claimants on the basis that their contracts of employment lapsed by effluxion of time, the trial court held that this went to the substance of the dispute and could only be conclusively dealt with at the hearing of the main suit (ruling at pages 180-181 of ROA). DETERMINATION 1. The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 1. In their submissions dated 21st January 2026, the Appellant identified the following issues for determination:- * 1. Whether the Learned Magistrate erred in law in holding that the 2nd Respondent's claim was not statute-barred under Section 89 of the Employment Act. Including whether the Learned Magistrate erred in holding that conciliation delays the running of statutory limitation time. 2. Whether the Learned Magistrate erred in declining to strike out the claims of the 5th, 6th, 7th and 8th Respondents, which had been conclusively settled through conciliation. 3. Whether the Learned Magistrate erred in law by declining to determine pure points of law at the preliminary stage. 1. On their part, the Respondents submitted on the grounds of appeal generally in their submissions dated 30th January 2026. 2. The court finds the issue for determination to be whether the trial court erred in finding the claim was not time barred under section 89 of the Employment Act. 3. The respondents filed suit by way of a memorandum of claim dated 16th December 2024 seeking various reliefs of termination dues in addition to general damages based on the allegation of unfair labour practices. 4. The appellant filed a notice of preliminary objection dated 14th February 2025 as follows- ‘1. THAT the Honourable Court lacks jurisdiction to entertain the 2nd claimant's claim, as it is statute- barred pursuant to Section 90 of the Employment Act, given that the suit was filed beyond the three (3) year statutory limitation period. 2.THAT the 2nd Claimant's claim is an abuse of court process and the same should be struck out with costs to the Respondent.’ 1. The trial court held as follows- ‘This matter came up for hearing of the preliminary objection and application dated 14th February 2025. The P.O is seeking orders that the claim be declared statutory barred having been filed more than three years for the time the claimant services were terminated contrary to Section 90 of the Employment Act. Section 90 refers to continuing injury and stipulates that such suits ought to be filed within 12 months. I have considered the application together with the submissions and replying affidavit and I find that indeed the suit was filed more than three years after the cause of action arose which is against the law as the time limit is three years. However, the claimant states that the matter had been referred to conciliation and there after the respondent had been waiting for the applicant to comply with the outcome of the conciliation. As state in the case of KNPSWU VS THE WATCHDOG LIMITED NAIROBI ELRC NO. 1308 OF 2017 it is true that once a dispute is submitted for conciliation by the minister and a conciliator appointed, the pace and conclusion of the conciliation process is beyond the control of the claimant and it would be unfair to include the period spent during conciliation in reckoning limitation. Since it is not denied that the delay was as a result of the conciliation, I find that the time only starts to run after the determination of the matter. I thus find that the suit is not time bard and the preliminary objection lacks in merit.’’ 1. I find that the trial court held the claims were of continuing injury and ought to have been filed within 12 months. However, the trial court relied on a decision of the court to the effect that time was not running when the dispute was before the conciliator. Conversely, the appellant before the trial court relied on the decision of the court in Mulae Coast Bus Mombasa Limited t/a Mail Co Ltd (2023)KELRC 2134(KLR) where the court upheld the decision of the Court of Appeal in Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another [2016] KECA 213 (KLR) to the extent the court had no power to extend time in employment claims. The Court of Appeal in recent decision in Kiige v National Hospital Insurance Fund [2026] KECA 309 (KLR) held as follows, ‘As a corollary, the right of appeal was a right that was embedded in the contract of employment. Failure to pursue the right and to instead commence court proceedings directly would be failure to exhaust the internal disciplinary process available to the appellant under the contract of employment. This would be even more pronounced here because the employer had expressly invited the employee to exhaust his right of appeal. To be deduced is that the termination communicated through the letter of 12th September, 2007 was tentative until the right to appeal was either waived or exhausted. Up to that point, there was no real grievance that could found a cause of action. This right of appeal is distinguishable from pursuit of out of court negotiations which are not provided or required in a contract of employment or as held by this Court in Rift Valley Railways (Kenya) Ltd that are not “court-based and conducted within the law’ The Court of Appeal thus upheld the decision relied on by the appellant before the lower court in Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another [2016] KECA 213 (KLR) where the court stated-‘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.’ This Court holds that the trial court erred in law in holding that the time at conciliation did not apply in reckoning limitation. 2. On merit of the Notice of Preliminary Objection, from the pleadings and submissions filed by parties, this Court holds that the only claims which were time-barred were with respect to the continuing injury claims for all the respondents. As for the claim of unfair termination, only the 2nd respondent's claim was time-barred, his contract having lapsed on 30th June 2021, as he pleaded his services were terminated on 1st July 2021 in paragraph 15 of the memorandum of claim (page 174 of ROA). All other contracts expired within the 3 years of filing the suit thus were valid as concerns unfair termination claims. The Court agreed with the trial court that the issues raised in the application as to whether all issues were resolved in the conciliation and whether the contracts expired by effluxion of time were substantive issues which required determination on merit. 3. In conclusion, the appeal is allowed partially. The ruling and Orders of the Hon. T. Orlando (PM) delivered on 8th May, 2025 in Nairobi CMELR E2540/2024 is set aside and substituted as follows- 1. The suit by the 2nd respondent filed outside the 3-year time limit is time-barred and is struck out. 2. The claims by all the respondents on continuing nature (terminal dues ) are held as time-barred having been filed outside the 12 months of termination. 3. The suit is remitted to the trial court for hearing and determination. 4. Each party to bear own costs in the appeal. 5. The suit is remitted to the trial court for hearing and determination, subject to the above orders, by any magistrate with jurisdiction other than Hon. T. Orlando (PM). 4. It is so Ordered. DATED, SIGNED, AND , DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Appellant – Ondeche Respondent: Ms. Musa