[2017] KEELRC 1659 (KLR)
The court found that the cause(s) of action accrued at the time of termination of employment, which was between June and October 2010. Even if the accrual date was considered to be the date of the certificate of disagreement (26 September 2011), the suit was still filed outside the three-year limitation period...
Source-derived case information.
- Citation
- [2017] KEELRC 1659 (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 256 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 claims for unfair termination and terminal benefits are time-barred under section 90 of the Employment Act, 2007.
- 2 Whether the date of accrual of the cause of action is affected by the conciliation process and issuance of a certificate of disagreement.
Ratio Decidendi
The court found that the cause(s) of action accrued at the time of termination of employment, which was between June and October 2010. Even if the accrual date was considered to be the date of the certificate of disagreement (26 September 2011), the suit was still filed outside the three-year limitation period prescribed by section 90 of the Employment Act, 2007. Therefore, the claims were time-barred and could not be entertained by the court. The preliminary objection was upheld and the suit dismissed.
Court Disposition
claim dismissed as time-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. 256 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 Godwin Lagat, Paul Mathenge Muhoro, Evans Mwangi Gakuya, Ramadhan Diya Chumphi, George Kamau.
2. In paragraph 5 of the Memorandum of Claim, the Union pleaded the dates of termination of the Grievants as 27 October 2010 for John Kiplagat Langat; 24 June 2010 for Paul Mwangi Mathenge Muhoro; 31 October 2010 for Evans Mwangi Gakuya, 25 October 2010 for Ramadhan Diya Gakuya and 13 September 2010 for George Kamau.
3. The Union also pleaded that the dispute(s) were taken through conciliation, and a certificate of disagreement was issued on 26 September 2011.
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 latest around September and October 2010 as outlined in paragraph 5 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 September/October 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 26 September 2011, the proceedings ought to have been instituted on or before 25 September 2014.
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