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Court of AppealDismissedNot stated in judgment

Nyakerario & 5 others v Professional Clean Care Ltd (Civil Appeal 466 of 2019) [2025] KECA 2036 (KLR)

Court of Appeal
28 November 2025
DMD. K. MusingaKMK. M'inotiGOG. V. Odunga
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed Kenyan employees lose their right to sue if they file employment claims even one day past the three-year deadline.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Nairobi against a ruling of Onesmus Makau J delivered on 12th October 2018, upholding a preliminary objection and striking out consolidated employment claims as statute-barred. The appellants, terminated on 30th November 2014, had lodged claims on 1st December 2017 seeking terminal dues and compensation for unfair termination. The trial judge held that under section 90 of the Employment Act, read with section 2 of the Interpretation and General Provisions Act (a year reckoned according to the British calendar), the three-year period expired on 30th November 2017, rendering the suits one day late. The Court of Appeal framed two issues: whether the preliminary objection was properly taken, and whether it was merited. Applying the Mukisa Biscuit test, the court held that a limitation objection based on undisputed facts is a pure point of law, and that disagreement over the legal result of applying law to agreed facts does not create a factual dispute. On the merits, the court held that the day of termination is excluded in computing time; the leap year 2016 gave the second year 366 days but did not extend the limitation period beyond 30th November 2017. The court affirmed the ruling below, dismissed the appeal, but made no order as to costs in view of the employment nature of the dispute. This decision binds subordinate courts and the Employment and Labour Relations Court on both the preliminary objection test and leap-year computation of limitation periods.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the preliminary objection was properly taken up
  2. 2.whether the preliminary objection was merited

Key legal issues

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01

Whether the preliminary objection based on limitation was properly taken up

Holding

Yes; limitation is a classic preliminary objection where the underlying facts are undisputed.

Reasoning

The court restated the Mukisa Biscuit test: a preliminary objection must be a pure point of law pleaded or arising clearly from the pleadings, capable of disposing of the suit, and raised on the assumption that all pleaded facts are correct. The date of termination (30th November 2014) was not in dispute, and computation of time is a question of law under the Limitation of Actions Act. Disagreement over the legal outcome of agreed facts does not convert the objection into a factual dispute.

p. 4
02

Whether the suits, filed on 1st December 2017, were time-barred under section 90 of the Employment Act

Holding

Yes; the last day for filing was 30th November 2017 and the suits were one day late.

Reasoning

Section 2 of the Interpretation and General Provisions Act defines a year as reckoned according to the British calendar. Excluding the day of termination, the three years ran from 1st December 2014, with the leap year 2016 contributing 366 days to the second year. The total period therefore expired on 30th November 2017. The leap year gave the appellants an extra day within the period but did not carry the limitation period forward.

p. 4

Legal principles established

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  • Disagreement on the legal result of applying the law to agreed facts does not make a preliminary objection factual; a limitation objection on undisputed facts is properly raised as a preliminary objection.
  • In computing a limitation period of years, the day the cause of action arises is excluded, and a leap year merely grants an extra day within the period; it does not extend the period to the following day.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs
  3. 3.It is so ordered

The bench

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One judgment of the whole court — no separate or dissenting opinions.

DM
majority
KM
majority
GO
majority
On appeal from
Employment and Labour Relations Court
Not stated in judgment
Jurisdiction invoked
First appellate jurisdiction over the trial court's ruling (statutory basis not expressly cited in the judgment)

Relief refused

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Setting aside the ruling and order of 12th October 2018 and dismissal of the preliminary objection

The suit was statute-barred by one day under section 90 of the Employment Act

p. 4

Costs of the appeal

Court took into account that the case was an employment dispute

p. 4

Costs

Appeal dismissed with no order as to costs, taking into account the fact that the appellants' case was based on an employment dispute between them and the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The fact that the parties disagree on the end result of the application of the law to a set of agreed facts does not raise a dispute on the facts for the purposes of a preliminary objection.
p. 4Preliminary objections - pure points of law
It is clear that the last day for filing the suit was 30th November 2017 and it matters not whether the year 2016 was a leap year. It only means that the appellants had the benefit of an extra day whose benefit they did not make use of.
p. 4Computation of limitation periods and leap years
The leap year does not mean that the limitation period is carried forward to the next day.
p. 4Limitation - effect of leap year
This appeal therefore, fails and is dismissed but with no order as to costs, taking into account the fact that the appellants’ case was based on employment dispute between them and the respondent.
p. 4Disposition and costs
It is so ordered.
p. 4Final orders

Issues in the judgment

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minor

Internal typo in the appellants' pleaded ground of appeal stating the leap year 2016 'had 365 days' in one passage and that the second year 'had 366 years' in another

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyakerario & 5 others v Professional Clean Care Ltd (Civil Appeal 466 of 2019) [2025] KECA 2036 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2036/eng@2025-11-28

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