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ELRCOtherStatement of Claim dated 9th January, 2013· [2014] KEELRC 29 (KLR)

Kenya Union of Employers of Voluntary and Charitable Organization,(Kuevco) v Board of Governors Pumwani Secondary School [2014] KEELRC 29 (KLR)

Industrial Court (Employment and Labour Relations Court)
5 December 2014
1,924 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an employer couldn't get a 12-year-old benefits claim thrown out on time grounds alone, because the case needed evidence and conciliation had paused the clock.

What this practically means

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Executive summary

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The claimant, through his union, filed a Statement of Claim on 9th January 2013 concerning his retirement, terminal benefits and dues. The respondent raised a preliminary objection at paragraph 24 of its Replying Memorandum, contending that the claim was time barred under Section 90 of the Employment Act, 2007 (three years from 31st December 2001) and, in the alternative, under Section 4(1) of the Limitation of Actions Act (six years from the same date), and sought that the claim be struck out with costs. The claimant opposed, arguing that the dispute had been reported to the Minister for Labour under the repealed Trade Disputes Act, that the cause of action accrued in 2006 when it became clear the respondent would not honour the conciliator's recommendations, and that the claim filed shortly after the conciliation process collapsed was within time. He relied on the Mukhisa Biscuits definition of a preliminary objection as a pure point of law. The court, per D.K.Njagi Marete, J, held that a close scrutiny of the pleadings disclosed disputed facts and material relating to the substance of the cause, and that resolving the limitation question would require further enquiry and evidence. The objection therefore fell short of the Mukhisa Biscuits requirements and was not a proper preliminary objection. The court adopted the position that a limitation period does not run while conciliation is ongoing. The preliminary objection was dismissed with costs to the claimant.

Key legal issues

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01

Whether the preliminary objection on limitation was a pure point of law

Holding

The objection was not proper because it depended on disputed facts requiring evidence

Reasoning

The court examined the pleadings and found disputed facts and unclear dates surrounding the filing of the claim and the accrual of the cause of action. Following Mukhisa Biscuits, a preliminary objection must rest on a pure point of law assuming the facts pleaded by the other side. Since ascertaining whether the claim was time barred required further enquiry and evidence, the objection fell short of the requirements of a preliminary objection.

p. 3
02

Effect of the conciliation process on the limitation period

Holding

The limitation period could not run while conciliation was ongoing

Reasoning

The claimant argued the cause of action accrued when it became clear the respondent would not honour the conciliator's recommendations, and that the claim filed shortly after the collapse of the dispute registration process was within time. The court relied on Wasilwa, J.'s authority holding that a limitation period does not run until an ongoing conciliation process is exhausted, undermining the objection founded on dates in 2001.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained
  • Where a limitation issue depends on disputed facts and requires further enquiry and evidence, it is not a proper preliminary objection
  • A limitation period does not run while a conciliation process is ongoing

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.Costs of the preliminary objection to the claimant
Jurisdiction invoked
Employment Act, 2007 (Section 90); repealed Trade Disputes Act, Cap 234

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Employers of Voluntary and Charitable Organization,(Kuevco) v Board of Governors Pumwani Secondary School [2014] KEELRC 29 (KLR)", Case Analysis (2014). Statement of Claim dated 9th January, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/29/eng@2014-12-05

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