[2017] KEELRC 1622 (KLR)
The court found that the claims for unfair termination and terminal benefits were time-barred under section 90 of the Employment Act, 2007. The cause of action accrued in April 2010 when the terminations occurred, and even if the accrual date was considered as the date of the Certificate of Disagreement (3 November...
Source-derived case information.
- Citation
- [2017] KEELRC 1622 (KLR)
- Parties
- Applicant: Transport Workers Union (K); Respondent: Scarce Commodities Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 257 of 2016
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim dismissed as statute-barred
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Limitation Periods, Terminal Benefits, Conciliation Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Transport Workers Union (K)
Applicant
Scarce Commodities Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim for unfair termination and terminal benefits was time-barred under section 90 of the Employment Act, 2007.
- 2 Whether the cause of action accrued at the time of termination or at the issuance of the Certificate of Disagreement by the Conciliator.
Ratio Decidendi
The court found that the claims for unfair termination and terminal benefits were time-barred under section 90 of the Employment Act, 2007. The cause of action accrued in April 2010 when the terminations occurred, and even if the accrual date was considered as the date of the Certificate of Disagreement (3 November 2010), the suit was still filed outside the three-year limitation period. The court therefore upheld the preliminary objection and dismissed the claim as statute-barred.
Court Disposition
claim dismissed as statute-barred
Orders
- The Memorandum of Claim is dismissed for being time-barred under section 90 of the Employment Act, 2007.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 257 OF 2016
TRANSPORT WORKERS UNION (K) CLAIMANT
v
SCARCE COMMODITIES LTD RESPONDENT
RULING
1. The Transport Workers Union (K) commenced legal proceedings against Scarce Commodities Ltd (Respondent) on 4 July 2016 and the issue in dispute was stated as Unfair termination and failure to pay the terminal benefits to Mr. Philip Mwatela Chuphi and Boniface Keli Mutuku.
2. In paragraph 5(a) of the Memorandum of Claim, the Union pleaded that the 2 Grievants employment were terminated on 6 April 2010 and 20 April 2010 respectively. Complaints of underpayment of wages were also outlined.
3. The Union also pleaded that the dispute(s) were taken through conciliation, and a Certificate of Disagreement was issued on 3 November 2010.
4. The Respondent in paragraph 7 of the Response to Claim contended that the cause(s) of action advanced by the Union were time barred in terms of section 90 of the Employment Act, 2007.
5. The objection on time bar was taken on 18 January 2017.
6. It cannot be disputed that the cause(s) of action presented by the Union relates to disputes arising out of contracts of service. The cause(s) of action accrued around April 2010 as outlined in paragraph 5(a) of the Memorandum of Claim.
7. In terms of section 90 of the Employment Act, 2007, the legal proceedings should have been instituted on or before April 2013, but the Union only moved to Court on 4 July 2016.
8. It is clear that the claims presented had already been caught up by limitation.
9. Even assuming that the cause(s) of action accrued at the time the Conciliator issued a Certificate of Disagreement on 3 November 2010, the proceedings ought to have been instituted on or before November 2013.
10. The Court will uphold the preliminary objection and dismiss the Memorandum of Claim herein with no order as to costs.
Delivered, dated and signed in Nakuru on this 17th day of March 2017.
Radido Stephen
Judge
Appearances
For Union Mr. Beru, Branch Secretary, Transport Workers Union (K)
For Respondent Ms. Muthoni instructed by Muthee Soni & Associates Advocates
Court Assistant Daisy