The Respondent’s Submissions
4.It is submitted for the Respondent that the claim herein was filed on 16/12/2021, and that it is alleged that the grievant’s services were terminated in October, 2017. The Respondent further submits that the three years elapsed in October, 2020, hence the claim does not conform to the mandatory time of limitation under Section 4(1) of the Limitation of Actions Act and Section 90 of the Employment Act, 2007, and must fail and the preliminary objection upheld. The Respondent placed reliance in Fred Mudave Gogo v G4s Security Services (k) Ltd (2014) eKLR for the holding that a claim commenced after three years after the act, neglected or default complained of, failed for failure to conform with the mandatory time limitations.
5.On the issue of the Claimant’s capacity to sue on behalf of the grievant, it is submitted that Sections 54 (3) and (6) of the Labour Relations Act, demands that for a union to have the locus standi in dealing with trade disputes, such a union must have Recognition agreements or any negotiations for and on behalf of members and their employers and without the Recognition agreement the union lacks standing to institute suit for and on behalf of the Grievant.
6.It is further submitted for the Respondent that in the present Claim, the Claimant has not demonstrated, even on prima facie basis, that there was any recognition agreement, or any relationship, as required by law, to enable it represent the Grievant. The Respondent submits that the claimant lacks standing to institute this Claim on behalf of the Grievant.
9.I have considered the Claimant’s Statement of Claim, the Preliminary Objection and the rival submissions. The issues for determination are whether the suit herein is Statute barred, and whether the Claimant has capacity to sue for the grievant (Mr. Johnson Mokua) like she has.
10.The legal position on Preliminary Objections was well laid down in Mukisa Biscuit Manufacturing Co. Ltd –vs West End Distributors Ltd (1969) EA 696, where the court held as follows:
11.The Preliminary Objection in this suit, being a plea of limitation premised on Section 4(1) of the Limitation of Actions Act and Section 90 of the Employment Act, 2007, is a pure point of law, and which if proved, has the potential to dispose of the suit without the need for a further hearing.
12.Section 4 (1) of the Limitation of Actions provides thus:-
13.Further, Section 90 of the Employment Act 2007, provides as follows on filing of employment related claims;
14.The Claimant’s Statement of claim is dated 17th July, 2021 and filed in court on 16th December, 2021. Paragraph 12 of the claim states as follows: -
15.Arising from the foregoing paragraph, it is not in doubt that the grievant on whose behalf the claim was lodged, left the service of the Respondent within the month of October, 2017.
16.This being a claim arising out of a contract of employment, the same should have been filed within 3 years from the date the cause of action accrued as stipulated under Section 90 of the Employment Act, 2007. The cause of action in the matter accrued the moment the grievant was, as he says, ‘chased away from work’. The grievant’s claim became enforceable the moment he was chased from work. In Elinathan Kitiro Mwamburi v Telcom Kenya Limited (2014) eKLR, it was held that once a termination occurs, time starts running.
17.The date when time starts to run, was settled by the holding of the Court of Appeal in the case of David Ngugi Waweru v Attorney General & Another (2017) eKLR, where the court stated that the time of dismissal or termination is the time contained in the letter of termination/dismissal and not the time of conclusion of internal disciplinary mechanisms.
18.In the claim before court, no termination or dismissal letter has been produced and the time of the termination adopted by this court is based on the time line given in the Claimant’s Statement of claim, and which is indicated at paragraph 14 of this ruling.
19.The court extensively dealt with the issue of limitation in the case of Hilarion Mwabolo v Kenya Commercial Bank (2013) eKLR where the court held:
20.In Attorney General & another v Andrew Maina Githinji and another  eKLR, Waki JA (as he then was) in upholding a Preliminary Objection based on Section 90 of the Employment Act, held as follows:
21.I find and hold that the grievant’s claim having accrued in October, 2017, was time barred by October, 2020. The suit herein was lodged on 16th December, 2021, one year after the accrual of the cause of action.
22.The issue of the Claimant’s capacity to sue falls by the way side.
23.The upshot is:i.The Respondent’s Preliminary Objection is upheldii.The Claimant’s Memorandum of Claim filed on 16th December, 2021, is struck out for being statute barred.iii.Parties shall bear their own costs of the suit