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ELRCStruck OutNot stated in the judgment

Kenya Chemical and Allied Workers Union v Laboratory and Allied Limited [2021] KEELRC 1498 (KLR)

Employment and Labour Relations Court
9 February 2021
MMM. Mbaru
977 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a retirement benefits claim filed too late, confirming the three-year deadline under section 90 applies even while negotiations continue.

What this practically means

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Executive summary

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The claimant, a trade union recognised by the respondent since 11th January, 1996, moved the court on 19th November, 2020 under Certificate of Urgency seeking employment benefits, being retirement benefits due to its grievant, Jacinta Waithera Mwaibara, who retired on 1st April, 2016. The respondent filed a Notice of Preliminary Objection on two grounds: that the claim, founded on a cause of action arising on 1st April, 2016, was time barred under section 90 of the Employment Act, 2007, and that the claimant lacked locus standi as the grievant's employment ceased before the claimant entered into a Memorandum/Recognition Agreement. The court directed that the objections be addressed first. On limitation, the court held that section 90 is mandatory, requiring suit within three years of the cause of action, relying on G4S Security Services (K) Limited v Joseph Kamau and Attorney General v Andrew Maina Githinji, and that ongoing negotiations, demands or promises do not suspend the period. The claim ought to have been filed by March, 2019 but was filed over a year late; the court was therefore denied jurisdiction. On standing, the court rejected the objection, holding that recognition or non-recognition of a trade union does not bar it from representing members in court, recognition being relevant only to CBA negotiations. The suit was struck out with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claim is time barred under section 90 of the Employment Act, 2007, the cause of action having arisen on 1st April, 2016 and the claim filed on 19th November, 2020
  2. 2.Whether the claimant has locus standi to file the claim on behalf of a grievant whose employment ceased, in light of the Memorandum/Recognition Agreement

Key legal issues

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01

Limitation under section 90 of the Employment Act, 2007

Holding

The claim is time barred; the cause of action arose on 1st April, 2016 upon retirement and the claim filed on 19th November, 2020 was over a year late, defeating the court's jurisdiction

Reasoning

Section 90 is couched in mandatory terms requiring suit within three years of the act, neglect or default. The grievant retired on 1st April, 2016 and retirement benefits were claimed therefrom, so the claim should have been filed by March, 2019. Filing on 19th November, 2020 exceeded the period. Ongoing negotiations or promises do not extend the period. Once time barred, the court is deprived of jurisdiction and must stop.

p. 2
02

Locus standi of the trade union to represent the grievant

Holding

The objection on standing fails; the claimant, recognised since 11th January, 1996, has standing to represent its member in court whether or not recognition subsists

Reasoning

The respondent was recognised by the claimant vide a Recognition Agreement dating back to 11th January, 1996, giving the union the right to negotiate collective agreements. In any event, recognition under the Labour Relations Act governs CBA negotiations only; a trade union may represent its members in court proceedings regardless of recognition, which is the very purpose for which members join unions.

p. 2

Legal principles established

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  • Section 90 of the Employment Act, 2007 is mandatory: a party must move the court within three years from the date the cause of action arose, even where there are ongoing negotiations, demands or promises
  • Recognition or non-recognition of a trade union by an employer is not a bar to the union representing its members in court proceedings; recognition relates to CBA negotiations, not litigation representation

Court orders

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  1. 1.The suit is struck out as time barred
  2. 2.Each party shall bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (suit arising out of employment; objection under section 90)

Relief refused

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The claimant's suit for retirement benefits of the grievant

The claim was filed more than three years after the cause of action arose, contrary to section 90 of the Employment Act, 2007

p. 2

Costs

Each party shall bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accusingly, the suit is time barred, the same is hereby struck out. Each party shall bear own costs.
p. 2Final orders - striking out for limitation
Section 90 of the Employment Act, 2007 is couched in mandatory terms. A party must move the court within 3 years from the date the cause of action arose.
p. 1Mandatory limitation period
The claim is time barred pursuant to section 90 of the Employment Act, 2007. The court is denied jurisdiction and must stop.
p. 2Limitation ousts jurisdiction
recognition or non-recognition of the trade union by an employer is not a bar to representation of its members in court
p. 2Trade union standing to represent members

Issues in the judgment

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minor

The judgment contains typographical and grammatical errors, e.g. 'Accusingly, the suit is time barred' and inconsistent date references in the quoted Githinji passage (dismissal letters dated 2nd October 2010 but cause of action 'arose on 2nd February 2010')

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Chemical and Allied Workers Union v Laboratory and Allied Limited [2021] KEELRC 1498 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1498/eng@2021-02-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.