Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Kenyatta National Hospital (Cause 673 of 2019) [2023] KEELRC 2622 (KLR)
The bottom line
#A Nairobi court struck out a claim for withheld salary of over Kshs 2 million because it was filed more than three years late, and conciliation delays did not save it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claim is time barred under section 90 of the Employment Act
- 2.Whether the grievant was entitled to withheld salary and allowances for the suspension period
- 3.Whether the Discipline Manual for the Public Service, 2016 applied retrospectively to the grievant's suspension
- 4.Whether the Respondent violated the grievant's constitutional rights under Articles 41 and 47
Key legal issues
#Whether the claim was caught by the three-year limitation period under section 90 of the Employment Act
The claim was statute barred. The cause of action over withheld salary and allowances accrued on 4th August 2016 when the grievant was reinstated, and the claim filed in October 2019 fell outside the three-year window, which cannot be extended.
The court held limitation is a point of law touching jurisdiction, to be resolved before the merits. Efforts at conciliation did not suspend or extend the limitation period because the cause of action accrued the moment the grievant was reinstated without payment of the withheld salary and allowances. Section 90 is couched in mandatory terms and once the three years lapse, the period cannot be extended. The court was therefore moved to strike out the suit.
Whether conciliation efforts extended the limitation period
No - conciliation efforts did not matter to the accrual of the cause of action.
The claimant relied on the failed conciliation process as a reason the claim was timely, having reported the trade dispute in 2017 and a conciliator having been appointed. The court rejected this, holding that it matters not that there were efforts to conciliate; the cause of action accrued upon reinstatement without withheld salary and allowances, so the limitation clock was unaffected by the conciliation.
Legal principles established
#- Limitation is a matter of law going to jurisdiction and must be dealt with in limine; the court cannot consider the merits of a claim once satisfied it lacks jurisdiction.
- Where a cause of action relates to withheld salary and allowances, it accrues on the date of reinstatement without payment, and the three-year period under section 90 of the Employment Act runs from that date.
Court orders
#- 1.The suit is struck out for being statute barred
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution; the claim was a trade dispute reported to the Minister under the Labour Relations framework (dispute referred to conciliation)
Relief refused
#Order compelling the Respondent to pay withheld salary for the period 18th September 2014 to 4th August 2016 totalling Kshs 2,075,808/= plus costs and interest
The claim was filed outside the three-year limitation period under section 90 of the Employment Act, the cause of action having accrued on reinstatement on 4th August 2016
Costs
No order as to costs (each party to bear their own costs) - the suit was struck out 'with no order as to costs'
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.
Limitation is a matter of law and one that goes to the jurisdiction of the Court. As has been observed in several cases including the famous Lilian S case, it is everything and whenever raised must be dealt with in limine.
It matters not that there were efiorts to conciliate the dispute, the cause action accrued the moment the grievant was reinstated without withheld salary and allowances.
This section is couched on mandatory terms and once lapsed cannot be extended.
In this respect the suit will be struck out but with no order as to costs for being statute barred.
Issues in the judgment
#The judgment inconsistently states the date of filing of the claim, recording 4th October 2016 in the determination when the pleadings and submissions record the claim as filed on 4th October 2019
The court applies section 90 limitation yet does not rule on the substantive entitlement to withheld salary, having struck out the suit for limitation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Kenyatta National Hospital (Cause 673 of 2019) [2023] KEELRC 2622 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2622/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.