Kenya Engineering Workers Union v Kalu Works Limited [2022] KEELRC 3859 (KLR)

Kenya Engineering Workers Union v Kalu Works Limited (Cause 1645 of 2016) [2022] KEELRC 3859 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEELRC 3859 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 1645 of 2016

Nzioki wa Makau, J

June 15, 2022

Between

Kenya Engineering Workers Union

Claimant

and

Kalu Works Limited

Respondent

Ruling

1. The preliminary objection dated March 21, 2022 taken by the respondent is to the following effect:-i.That this claim is incompetent, bad suit is statute barred pursuant to section 90 of the Employment Act and therefore unsustainable.ii.That this court lacks jurisdiction to hear and determine the suit by virtue of the cause of action being barred by time and the same should be struck out with costs.

2. The claimant did not file any response to the preliminary objection despite being granted the opportunity by the court. The issue raised by the respondent goes to the root of the claim. If this court has no jurisdiction then there will be no need to retain the case before the employment courts. It is not controverted that section 90 of the Employment Act provides a limit as to when a suit can be filed for a general claim as the matter before me. Section 90 of the Employment Act 2007 states as follows:-“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted un less it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” (Emphasis supplied)

3. The claimant seeks relief in this case regarding matters that arose in 2005 and 2006. Under the law, the limitation set in 3 years after and taking the latter year the limitation set in sometime in 2009. As such mounting a claim as was done in 2016 was not only misplaced but pure mischief by the claimant as the grievant was moved from managerial to staff in July 2005. The mischief in indicating July 2015 in one paragraph of the pleadings was so as to mislead the Registry of this court to admit the otherwise stale claim. On that ground alone the suit stands dismissed for being time barred and because its filing was obtained through deceitful means the claimant union will pay costs of the suit to the respondent.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JUNE 2022. Nzioki wa MakauJUDGE