Joseph Chodo v Lake Nakuru Lodge [2020] KEELRC 872 (KLR)
The bottom line
#The Employment Court dismissed a former lodge worker's claims because he filed over three years after dismissal and his union had already settled the dispute.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether claims relating to employment prior to the letter of appointment of 1st March 2012 were time-barred under section 90 of the Employment Act, 2007
- 2.Whether the entire claim was filed out of time given the employment ended on 16th January 2013 and the suit was filed on 9th March 2016
- 3.Whether the conciliation settlement between the trade union, the labour officer and the respondent bars the suit
- 4.Whether the claimant was underpaid, and whether he was entitled to overtime pay, public holiday pay, leave pay, notice pay and gratuity
Key legal issues
#Limitation under section 90 of the Employment Act, 2007
The claim was time barred: employment ended on 16th January 2013 and the Memorandum of Claim was filed on 9th March 2016, beyond the three-year limitation period; claims predating 1st March 2012 were also time barred.
The court held that formal employment commenced with the letter of appointment effective 1st March 2012, and employment ended on 16th January 2013. Under section 90, such claims ought to have been addressed on or before 28th February 2015. Following Attorney General v Andrew Maina Githinji, the three-year period is computed from when the cause of action accrues. Filing on 9th March 2016 was out of time.
Effect of the conciliation settlement under the Labour Relations Act, 2007
The dispute was settled through a conciliator appointed by the Minister, with terminal dues paid through the Labour Office, so the claimant cannot sue the employer contrary to that agreement.
The claimant reported the dispute to a union; the recognised union KUDHEIHA took it up, a conciliator was appointed, and a resolution was achieved with payment to the claimant. Under sections 62 and 68 of the Labour Relations Act a resolved dispute, once confirmed by the Labour Officer, leaves no mandate to move the court; any grievance about representation lies against the union.
Underpayment and overtime claims on the merits
The applicable Wage Orders were those for 'other areas' outside Nakuru Municipality, so wages were not underpaid; the claimant worked 49 hours per week against a permitted 60, so no overtime was due.
The respondent is located 30 kilometres from Nakuru's central business district within the National Park, so the 'other areas' wage orders applied. The claimant had an off/rest day each week and worked 9 hours a day, totalling 49 hours weekly, below the 60-hour ceiling; claiming overtime would amount to unjust enrichment.
Legal principles established
#- Claims arising before formal written appointment and employment terminated more than three years before suit are time-barred under section 90 of the Employment Act, 2007
- Once a trade dispute is resolved through conciliation and confirmed by the Labour Officer, the employee cannot re-litigate the settled dispute in court; recourse for unfair representation lies against the trade union
- A trade union is liable in damages where it fails to perform the mandate of fair representation it accepted
Court orders
#- 1.The suit is dismissed
- 2.Costs to the respondent
- 3.Judgment to be delivered to the parties via e-mails pursuant to COVID-19 court operation directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Relations Act, 2007
Relief refused
#Notice pay Ksh.9,103.30
Paid in lieu of notice via cheque No.007928 through the Labour Office; further, suit is time barred
Underpayments from April 2010 to 31st December 2012 Ksh.97,883.50
Pre-1st March 2012 claims are time barred; wages paid were commensurate with the applicable Wage Orders for areas outside Nakuru Municipality
Overtime pay Ksh.30,451.80
The claimant worked 49 hours per week against a permissible 60 hours; claim amounts to unjust enrichment
Public holidays pay Ksh.26,109.70
Respondent testified claimant was paid whenever he worked during public holidays; claims are time barred and without merit
Leave for 2.9 years Ksh.17,431.30
Off/rest days were granted and applied for; under section 28 the claimant's rights were secured during the subsisting contract
Gratuity for 2 years Ksh.9,103
Respondent maintained that the claimant is not entitled to payment of gratuity and paid statutory dues; claim time barred
Compensation Ksh.109,239.60
Claim time barred and without merit; matter settled before the conciliator through the claimant's trade union
Costs
Costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The analysis above taken into account; the claims time barred and or lacking merit; the claims made after an agreement between the trade union and the employer before the Conciliator settling the matter is without foundation. The suit is hereby dismissed. Costs to the respondent.
The suit was filed on 9th March, 2016. Claims made and relating to the period before the letter of appointment taking effect on 1 st March, 2012 are time barred.
Where an employee and member of a trade union is aggrieved by the settlement undertaken on his behalf by the legal representative and trade union, recourse is not against the employer but against such trade union.
To claim overtime pay is to seek unjust enrichment.
The rationale is that a trade union is liable for damages if it fails to perform the mandate which it accepted to represent its members .
Issues in the judgment
#Internal inconsistency on the date the employment ended - the narrative refers to 16th January 2016 in one passage while pleading and analysis use 16th January 2013
Typographical error in the quotation of section 68 of the Labour Relations Act ('mandat4e')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Chodo v Lake Nakuru Lodge [2020] KEELRC 872 (KLR)", Case Analysis (2020). Cause No. 102 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/872/eng@2020-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.