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ELRCOthernot stated in the extract· [2015] KEELRC 997 (KLR)

Barnes Mwema v Kenpoly Limited [2015] KEELRC 997 (KLR)

Employment and Labour Relations Court
22 May 2015
ANAbuodha J. N.
596 words in judgment
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The bottom line

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A Kenyan employment court refused to dismiss a late-looking claim because when time starts running was genuinely unclear, so the case proceeds to trial.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection raised by the respondent in an employment claim before the Employment and Labour Relations Court at Nairobi. The respondent argued that the court lacked jurisdiction because the suit was filed outside the limitation periods — six years under the Limitation of Actions Act and three years under section 90 of the Employment Act. The claimant opposed, contending that he had been placed on indefinite compulsory leave from 1st September 2007 pending the resolution of an unspecified court matter, making the cause of action continuous; it crystallised, he said, in 2012 when Mr. Ramesh Patel of the respondent refused to take his calls and he was denied access to the respondent's premises. Relying on Mukisa Biscuit Company, counsel for the claimant submitted that the objection was not a pure point of law since the date of accrual was a factual question requiring evidence. The court agreed. Applying the principle from Halford v. Brooks on the claimant's knowledge of accrual, Judge Abuodha held that where the exact point of accrual is unclear, the court should lean towards allowing access to its process rather than shutting out a claimant. Since no evidence showed when the referenced court matter was resolved, the accrual date was not crisp, and it would be unjust to strike the suit out. The preliminary objection was overruled and dismissed with costs, and the suit was directed to proceed to trial on merit.

Key legal issues

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01

Whether an objection based on limitation is a pure point of law

Holding

An objection that depends on establishing when the cause of action accrued is not a pure point of law, since it requires evidence at trial.

Reasoning

Relying on Mukisa Biscuit Company, counsel argued a preliminary objection must be a pure point of law. Here, when the cause of action accrued turns on facts — the unresolved suspension, the follow-up with Mr. Ramesh Patel, and the denial of access in 2012 — which must be proved by evidence at trial, so the objection is premature.

p. 1
02

When the cause of action accrued given the indefinite suspension

Holding

The accrual date is not clear: the suspension letter was indefinite pending an unidentified court matter, and the claimant alleges continued follow-up until 2012.

Reasoning

The suspension letter required the claimant to remain on compulsory leave until an unnamed court matter was resolved; no evidence showed what that matter was or when it ended. The claimant averred he followed up with Mr. Ramesh Patel until 2012, when Patel refused his calls and he was denied access to the premises. Accordingly, it would be unjust to strike out the suit as time-barred without determining accrual at trial.

p. 2

Legal principles established

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  • Where the precise date a cause of action accrued is unclear, the court should lean towards permitting access to its process rather than striking out the suit as time-barred.
  • Knowledge of accrual means knowing enough to reasonably begin investigating a claim, not certainty.

Court orders

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  1. 1.The preliminary objection is overruled and dismissed with costs
  2. 2.The suit shall proceed to trial on merit

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Actsection 4(1)

Cases cited (2)

  • Mukisa Biscuit Company
  • Halford v. Brooks
    (1997) 1 WLR 428
Jurisdiction invoked
Employment Act, section 90; Limitation of Actions Act, section 4(1) (invoked by respondent in objection)

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, "Barnes Mwema v Kenpoly Limited [2015] KEELRC 997 (KLR)", Case Analysis (2015). not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/997/eng@2015-05-22

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