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ELRCOtherNot stated in judgment· [2014] KEELRC 1437 (KLR)

Ibrahim Ratemo Magomga v Eldoret Grains Ltd [2014] KEELRC 1437 (KLR)

Industrial Court (Employment and Labour Relations Court)
14 November 2014
714 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to dismiss a poorly drafted unfair dismissal claim, ruling that time-bar objections must be pure points of law arising from pleadings.

What this practically means

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Executive summary

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The Claimant sued on 5 March 2014 alleging unlawful termination and claiming Kshs 1,920,000/- in benefits and dues. The Respondent filed a Notice of Preliminary Objection on 22 October 2014 contending that the claim was time barred under Section 90 of the Employment Act, 2007, since the Claimant pleaded termination in 2011 while demand letters of October 2010 and July 2013 indicated termination in July 2010. The Respondent relied on Josephat Ndirangu v Henkel Chemicals; the Claimant relied on Khaemba and Kaswii, arguing limitation had not been pleaded and that the objection turned on disputed facts. Applying Mukisa Biscuit, the Court held the objection did not flow from the pleadings, since it depended on documents and dates not pleaded by either side. It nonetheless observed that unpleaded limitation may be raised at any time but promptly, absent prejudice. Finding the Statement of Claim poorly drafted and non-compliant with the Industrial Court (Procedure) Rules, 2010, the Court declined to dismiss the suit outright, instead ordering the Claimant to file an Amended Statement of Claim by 20 November 2014 failing which the Cause would stand struck out. Costs of the preliminary objection (Kshs 6,000/-) were awarded to the Respondent, and the Cause was set down for mention on 21 November 2014 for compliance and further directions.

Key legal issues

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01

Whether the time-bar objection qualified as a preliminary objection

Holding

It did not, because it relied on documents and disputed dates not in the pleadings

Reasoning

Applying Mukisa Biscuit, the Court held a preliminary objection must be a pure point of law. The objection here depended on demand letters and a disputed date of termination that neither party had pleaded, so it could not be determined without evidence.

p. 2
02

Whether limitation could be raised without pleading

Holding

Yes, it may be raised at any time but promptly, absent prejudice

Reasoning

Although Civil Procedure Rules require a party to plead limitation as a point of law, the Court held that an unpleaded limitation defence may still be raised at any time provided it is done promptly and no prejudice or injustice results to the opposing party.

p. 2
03

Adequacy of the Statement of Claim

Holding

The Statement of Claim was poorly drafted and non-compliant with the Industrial Court (Procedure) Rules, 2010, but curable by amendment

Reasoning

The Court found the Claimant did not plead the exact date of termination and that the key purpose of pleadings is to set out facts constituting a cause of action. The defects were curable, so the Claimant was given leave to amend rather than having the suit dismissed outright.

p. 2

Legal principles established

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  • Limitation, though a point of law not pleaded, may be raised at any time but promptly, provided no prejudice or injustice is occasioned to the other party
  • A preliminary objection must flow from the pleadings and not depend on disputed facts or documents not referred to in the pleadings

Court orders

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  1. 1.Claimant to file and serve an Amended Statement of Claim clearly setting out the facts constituting the cause of action on or before 20 November 2014 or the Cause to stand struck out
  2. 2.Costs of the preliminary objection awarded to the Respondent in the sum of Kshs 6,000/- to be paid before 20 November 2014
  3. 3.The Cause to be mentioned on 21 November 2014 to confirm compliance and for further directions

Authorities

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Legislation

  • Employment ActSection 90
  • Industrial Court (Procedure) Rulescontent of pleadings provisions
  • Civil Procedure Rulespleading limitation

Cases cited (6)

  • Mukisa Biscuit Company v Westend Distributors Ltd
    (1969) EA 696
  • Josephat Ndirangu v Henkel Chemicals (EA) Ltd
    Petition No. 1 of 2013
  • Henry Wanyama Khaemba v Standard Chartered Bank (K) Ltd & another
    (2014) eKLR
  • Janet Syokau Kaswii v Kathonzweni Financial Service Association
    (2014) eKLR
  • Stephen Waweru Wanjohi & Others v Attorney General & Others
    Constitutional Petition No. 373 of 2012
  • Kipngetich Maiyo & Others v the Kenya National Land Commission Selection Panel & Others
    Constitutional Petition No. 426 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims; Industrial Court (Procedure) Rules, 2010

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, "Ibrahim Ratemo Magomga v Eldoret Grains Ltd [2014] KEELRC 1437 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1437/eng@2014-11-14

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