Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 297 of 2012· [2020] KECA 911 (KLR)

Dominiciano Kinyua Magambo & 4 others v Invesco Assurance Company [2020] KECA 911 (KLR)

Court of Appeal of Kenya
7 February 2020
2,218 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal reinstated five employees' claims against Invesco Assurance, ruling you cannot strike out claims as time-barred when key facts are still disputed.

What this practically means

#

Executive summary

#
This is a first appeal to the Court of Appeal at Nairobi against a ruling of the Employment and Labour Relations Court (Ndolo J.) dated 25th November 2016, by which five consolidated employment claims against Invesco Assurance Company were struck out with no orders as to costs on a preliminary objection that they were time barred under Section 90 of the Employment Act. The appellants, former or purported employees of the respondent, alleged unpaid salaries and accrued dues from about 2008 when the insurer was placed under statutory management and staff were sent on compulsory unpaid leave by memo dated 1st March 2008, with no further communication ever issuing. They maintained they were never terminated and remained employees, so their claims were continuing injuries; the respondent contended employment ended on appointment of the statutory manager in February 2008 but adduced no documentary evidence of termination. The Court of Appeal, restating the first appellate duty of re-evaluating the evidence and the Mukisa Biscuit principles governing preliminary objections, held that a preliminary objection must be a pure point of law on undisputed facts. Since whether, how and when the employment contracts ended was contested and could only be resolved by oral evidence, limitation could not be determined preliminarily; the Judge erred in relying on the respondent's unproven allegation of termination in 2008. The appeal was allowed with costs, the ruling was set aside in its entirety, the preliminary objection was dismissed, and the claims were reinstated for hearing before a Judge other than Ndolo J.

Key legal issues

#
01

Whether the appellants' claims were statute barred under Section 90 of the Employment Act

Holding

It could not be determined on a preliminary objection because the date the claims crystallised depended on contested facts about whether and when employment was terminated; the claims were treated as continuing injuries.

Reasoning

The appellants asserted they were never terminated and remained employees awaiting recall, while the respondent contended employment ended on appointment of the statutory manager in 2008 but produced no documentary evidence of termination. Without documentary proof of when the continuing injury ceased, limitation under Section 90 could not be resolved without a hearing. Striking out the claims on a preliminary objection was therefore an error.

p. 3
02

Whether the respondent's preliminary objection was a proper preliminary objection under the Mukisa Biscuit principles

Holding

It was not, because it depended on disputed facts about termination of the employment contracts.

Reasoning

Applying Mukisa Biscuit, a preliminary objection must be a pure point of law assuming the truth of all facts pleaded by the other side. Here the parties disputed whether the contracts of employment were terminated, how and when - a factual contest that could only be resolved by adducing oral evidence at a hearing. The objection was therefore improperly raised and the Judge erred in allowing it as the basis for striking out the claims.

p. 3
03

The duty of the Court of Appeal on a first appeal

Holding

The Court must re-evaluate, reassess and reanalyse the evidence on record and draw its own conclusions, while making allowance for not having seen or heard the witnesses.

Reasoning

Citing Kenya Ports Authority v Kuston, the Court restated that on a first appeal it must reconsider the evidence, evaluate it itself and draw its own conclusions, bearing in mind it did not see or hear the witnesses, and must rule only on the evidence on record without introducing extraneous matters. This framed the Court's fresh evaluation of the record before interfering with the ruling below.

p. 2

Legal principles established

#
  • A preliminary objection must raise a pure point of law on facts that are not contested; where facts are disputed or facts must be ascertained, the objection is improper and the matter must go to trial.
  • A limitation defence under Section 90 of the Employment Act cannot be sustained on a preliminary objection where the date the cause of action crystallised depends on contested facts requiring oral evidence.

Court orders

#
  1. 1.The appeal is allowed with costs
  2. 2.The ruling dated 25th November, 2016 is set aside in its entirety
  3. 3.The ruling is substituted with an order dismissing the preliminary objection
  4. 4.The appellants' claims are reinstated to be placed before a Judge, other than Ndolo J, for hearing
On appeal from
Employment and Labour Relations Court at Nairobi
Cause Nos. 1197, 1198, 1200, 1201 and 1202 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (first appeal re-evaluation of evidence)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dominiciano Kinyua Magambo & 4 others v Invesco Assurance Company [2020] KECA 911 (KLR)", Case Analysis (2020). Civil Appeal No. 297 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/911/eng@2020-02-07

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