Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Wrigley Company (East Africa) Ltd & another (Civil Appeal 459 of 2019) [2025] KECA 2021 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a union's 2017 unfair termination claim was five years too late: employment claims must be filed within three years of termination.
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 trial court was right to uphold the preliminary objection on the basis that ELRC Cause No. 806 of 2017 was statute-barred under section 90 of the Employment Act
- 2.Whether a preliminary objection on limitation could properly be raised despite the absence of a statement of defence
- 3.Whether the pendency of ELRC Petition No. 22 of 2012 suspended or deferred the accrual of the cause of action
- 4.Whether determining when termination of employment occurred required resolution of disputed facts, rendering the preliminary objection incompetent
Key legal issues
#Whether limitation could be raised by preliminary objection without a defence
Yes. A limitation objection taken in limine, apparent on the face of the claimant's own pleadings, is properly raised by preliminary objection; Stephen Onyango Achola is confined to cases where a defence was filed without a limitation plea.
The court distinguished Stephen Onyango Achola, where a defendant who had filed a defence omitting limitation later sought to invoke it. Here the 1st respondent filed a notice of preliminary objection at the outset anchored on dates in the memorandum of claim, so there was no ambush and no further pleading was required. The court relied on Bhupinder Singh Dogra, where an objection on limitation was upheld despite no defence having been filed.
When the cause of action accrued
The cause of action for unfair termination accrued on the pleaded date of termination, 29th May 2012; the claim filed on 2nd May 2017 was outside the three-year period under section 90 (now 89) of the Employment Act.
The appellant's memorandum of claim expressly pleaded that all employees were locked out and their services deemed terminated on or about 29th May 2012. Even taking the judgment date in the related Petition No. 22 of 2012 (31st July 2013) as the starting point, the 2017 claim would still be out of time. Limitation is not a discretionary indulgence and equity cannot override an express statutory bar.
Whether the preliminary objection required resolution of disputed facts
No. The trial court was bound to proceed on the appellant's own pleaded version that termination occurred on 29th May 2012; no factual enquiry was necessary.
A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct (Mukisa Biscuit). The appellant pleaded positively that the lock-out and termination occurred on or about 29th May 2012 and pleaded no uncertainty. Having framed its case on that footing, it could not resile when it became tactically convenient.
Legal principles established
#- A plea of limitation may be raised by way of preliminary objection at the outset where the limitation issue is apparent on the face of the plaintiff's pleadings, even where no statement of defence has been filed
- The cause of action for wrongful or unfair termination of employment accrues on the date of termination, and the pendency of related proceedings does not alter the statutory position that time runs from that date
- Parties are bound by their pleadings and cannot depart from their own pleaded position when it becomes tactically convenient to do so
- Equity cannot override an express statutory time-bar; limitation statutes are not a discretionary indulgence for dilatory litigants
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court, Nairobi
- ELRC Cause No. 806 of 2017 (ruling on Notice of Preliminary Objection)
- Jurisdiction invoked
- First appeal to the Court of Appeal against a decision of the Employment and Labour Relations Court (employment and labour relations jurisdiction)
Relief refused
#Setting aside the trial court's ruling and remitting the matter for a full hearing on the merits
The claim was statute-barred under section 90 of the Employment Act; the preliminary objection was properly grounded on the appellant's own pleadings
Costs
The appeal is dismissed with costs to the respondents.
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.
In the end, this appeal is without merit and it is hereby dismissed with costs to the respondents.
In the circumstances, we find no basis for interfering with the decision of the trial court. The inescapable conclusion is that ELRC Cause No. 806 of 2017 was statute-barred and the trial court was correct to uphold the preliminary objection and dismiss the suit for want of jurisdiction.
Contrary to the suggestion by the appellant, this Court did not hold that a defendant is barred from raising limitation in limine by way of a preliminary objection at the outset where the limitation issue is apparent on the face of the plaintiff's pleadings.
The existence of parallel proceedings or the observations made by the bench in Petition No. 22 of 2012 regarding the plight of the employees and the possibility of relief had they quantified their claims does not alter the statutory position that time begins to run from the date of termination.
In any case, equity cannot override an express statutory time-bar.
Issues in the judgment
#The date of the 1st respondent's Notice of Preliminary Objection is inconsistent within the judgment: it is given as 24th January 2017 in the opening paragraph but as 24th July 2017 in the account of the response to the Memorandum of Claim, the latter being consistent with the Memorandum of Appearance dated 25th May 2017.
The trial court is referred to as 'the Employment and Labour Relations Court (ELC)' although ELRC is the correct abbreviation for the Employment and Labour Relations Court, and it is elsewhere described as the forum in which ELRC Cause No. 806 of 2017 was filed.
The industrial cause in which the outsourcing arrangement was first found unlawful is given as Cause No. 76 of 2008 in one passage and as Industrial Cause No. 76 of 2012 in the appellant's submissions.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Wrigley Company (East Africa) Ltd & another (Civil Appeal 459 of 2019) [2025] KECA 2021 (KLR)", Case Analysis (2025). ELRC Cause No. 806 of 2017 (appeal from ruling delivered 11th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2021/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.