James K Kamau v City Council of Nairobi [2014] KEELRC 1416 (KLR)
The bottom line
#A Kenyan employment court threw out an employer's attempt to have a delayed salary and unfair dismissal claim dismissed as filed too late, because it required facts to be proven.
What this practically means
#Executive summary
#Key legal issues
#Accrual of the cause of action for limitation purposes
The time of accrual of the cause of action is a contested factual question - whether from the 2002 backdated date, the 2006 termination letter, or when reinstatement recommendations were not honoured - and cannot be resolved on a preliminary objection.
The court found the pleadings did not clearly show when the cause of action accrued. The claimant identified contested facts: a summary dismissal letter of 7th July 2006 backdated to 1st October 2002, an appeal of 31st July 2006, and respondent meetings in 2009 and 2010 recommending reinstatement. The claimant argued he was not in control of events after termination, relying on authorities holding that limitation does not run while conciliation or appeal processes are ongoing. Determining accrual would require evidence and factual analysis.
Sustainability of the preliminary objection
The preliminary objection fails because it requires ascertainment of facts, contrary to the Mukhisa Biscuits principle that a preliminary objection must be a pure point of law.
Applying Mukhisa Biscuits Co. Ltd v West End Distributors Ltd, the court held that the objection based on Section 90 of the Employment Act could not be determined without delving into the factual basis of the case, including the status of the claimant and the events surrounding the termination and appeal. Questions of law and fact in limitation must be proven through evidence, so the objection lacked the legal attributes of a preliminary objection and was dismissed with costs.
Legal principles established
#- 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 conciliation or internal appeal process is ongoing, the limitation period does not run until that process is exhausted.
Court orders
#- 1.The preliminary objection dated 10th May, 2012 (as reproduced 10th May 2012 in the judgment) fails and is dismissed
- 2.Costs of the preliminary objection to the Claimant
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment and labour relations disputes (claim filed under the Employment Act, 2007 regime)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James K Kamau v City Council of Nairobi [2014] KEELRC 1416 (KLR)", Case Analysis (2014). Memorandum of Claim dated 26th January, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1416/eng@2014-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.