[2017] KEELRC 1631 (KLR)
The court found that the cause of action for unfair termination and terminal benefits accrued in April 2011, as evidenced by the demand letter. Even if the date of the Certificate of Disagreement (6 September 2011) was considered, the claim was filed outside the three-year limitation period prescribed by section 90...
Source-derived case information.
- Citation
- [2017] KEELRC 1631 (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 259 of 2016
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim dismissed as time-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 date of accrual of the cause of action was the date of termination or the date of the Certificate of Disagreement.
Ratio Decidendi
The court found that the cause of action for unfair termination and terminal benefits accrued in April 2011, as evidenced by the demand letter. Even if the date of the Certificate of Disagreement (6 September 2011) was considered, the claim was filed outside the three-year limitation period prescribed by section 90 of the Employment Act, 2007. Therefore, the claim was time-barred and could not be entertained by the court.
Court Disposition
claim dismissed as time-barred
Orders
- The preliminary objection is upheld.
- The Memorandum of Claim is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAKURU
CAUSE NO. 259 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. Antony Liseke Lisimba.
2. In paragraph 4 of the Memorandum of Claim, the Union pleaded that the Grievant’s employment was unlawfully terminated without setting out the date of termination. The paragraph made reference to a demand letter which set out the date as 7 April 2011.
3. The Union also pleaded that the dispute(s) were taken through conciliation, and a Certificate of Disagreement was issued on 6 September 2011.
4. The Respondent in paragraph 7 of the Response to Claim contended that the cause of action advanced by the Union was 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 of action presented by the Union relates to a dispute arising out of a contract of service. The cause(s) of action accrued around April 2011 as outlined in the demand letter.
7. In terms of section 90 of the Employment Act, 2007, the legal proceedings should have been instituted on or before 6 April 2014, but the Union only moved to Court on 4 July 2016.
8. It is clear that the claim presented had already been caught up by limitation.
9. Even assuming that the cause of action accrued at the time the Conciliator issued a Certificate of Disagreement on 6 September 2011, the proceedings ought to have been instituted on or before 6 September 2014.
10. The Court will therefore 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