Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutNot stated in the judgment text provided

Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Kenyatta National Hospital (Cause 673 of 2019) [2023] KEELRC 2622 (KLR)

Employment and Labour Relations Court
27 October 2023
1,926 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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

#
The Claimant union sued on behalf of its grievant, Mr. Martin Ocharo, a former Medical Laboratory Technologist of the Respondent, seeking payment of salary and allowances withheld during his suspension from 18th September 2014 to 4th August 2016, totalling Kshs 2,075,808/=. The grievant was suspended over allegations of unprocedural repatriation of a body and issuance of a fake receipt for Kshs 80,000/=, was later exonerated by the Staff Disciplinary and Advisory Committee which recommended reinstatement without loss of salary, but the Respondent's CEO directed reinstatement with loss of the withheld salary. The grievant subsequently retired early in January 2017. The Respondent denied liability, contending the Discipline Manual of 2016 was not retrospective, that the committee's recommendation was not binding, and crucially that the claim was time barred under section 90 of the Employment Act. The court resolved the limitation issue first, holding it to be a question of jurisdiction to be dealt with in limine. It found the cause of action accrued on 4th August 2016 upon reinstatement without payment of withheld salary and allowances, and that the claim filed in October 2019 fell outside the mandatory three-year period, which cannot be extended and was unaffected by the conciliation efforts. The suit was struck out as statute barred, with no order as to costs.

Questions the Court framed

#

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
  2. 2.Whether the grievant was entitled to withheld salary and allowances for the suspension period
  3. 3.Whether the Discipline Manual for the Public Service, 2016 applied retrospectively to the grievant's suspension
  4. 4.Whether the Respondent violated the grievant's constitutional rights under Articles 41 and 47

Key legal issues

#
01

Whether the claim was caught by the three-year limitation period under section 90 of the Employment Act

Holding

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.

Reasoning

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.

p. 4
02

Whether conciliation efforts extended the limitation period

Holding

No - conciliation efforts did not matter to the accrual of the cause of action.

Reasoning

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.

p. 4

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. 1.The suit is struck out for being statute barred
  2. 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

p. 4

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.
p. 4Limitation as a jurisdictional question
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.
p. 4Accrual of cause of action notwithstanding conciliation
This section is couched on mandatory terms and once lapsed cannot be extended.
p. 4Mandatory nature of section 90 Employment Act limitation
In this respect the suit will be struck out but with no order as to costs for being statute barred.
p. 4Final orders

Issues in the judgment

#
minor

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

minor

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.