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ELRCDismissedCause commenced 25 August 2014 (Memorandum of Claim dated 4th August, 2014)· [2015] KEELRC 1147 (KLR)

David Juma Akite v Amos Maina Mutero T/A Summerland Hotel [2015] KEELRC 1147 (KLR)

Employment and Labour Relations Court
17 April 2015
RSRadido Stephen
1,166 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 claim cannot be thrown out as time-barred through a preliminary objection when the parties disagree on the facts about when the dispute began.

What this practically means

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Executive summary

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The Claimant sued the Respondent, a hotel operator, on 25 August 2014 raising eight issues including unfair termination, notice, underpayment, overtime, public holidays, leave, half salary during suspension and gratuity. He pleaded that his employment was terminated effective 1 September 2011 after a series of suspensions linked to demands for salary increments and other entitlements. The Respondent filed a Response asserting that the Claimant deserted employment on 7 April 2011 and that a service letter relied on by the Claimant was a forgery, and later lodged a preliminary objection contending that the suit was statutorily barred under section 90 of the Employment Act, which imposes a three-year limitation period on causes of action arising out of a contract of service. The court applied the Mukisa Biscuits test, which confines preliminary objections to pure points of law argued on the assumption that the opposing party's pleaded facts are correct. Since the limitation defence turned on whether the Claimant was terminated on 1 September 2011 or deserted duty on 7 April 2011 - contested issues of fact resolvable only after evidence - the objection failed the test. The court characterised the objection as a red herring intended to delay the cause, dismissed it with costs to the Claimant, and directed that a date be fixed for hearing of the cause on the merits.

Key legal issues

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Whether a limitation objection premised on contested facts (termination on 1 September 2011 versus desertion on 7 April 2011) can be raised as a preliminary objection

Holding

The preliminary objection failed because determining when the cause of action accrued required ascertainment of facts through evidence, not a pure point of law.

Reasoning

The court applied the Mukisa Biscuits standard, citing both Law J and Sir Charles Newbold P. The Respondent's limitation objection under section 90 of the Employment Act depended on establishing that the Claimant deserted duty on 7 April 2011, whereas the Claimant pleaded termination on 1 September 2011. These were contested factual issues that could only be resolved after hearing evidence from both sides, so the objection could not dispose of the suit as a preliminary point.

p. 3

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, and cannot be raised where facts must be ascertained.

Court orders

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  1. 1.The Preliminary Objection is dismissed with costs to the Claimant
  2. 2.A convenient date for the hearing of the Cause on the merits to be fixed when the diary is opened

Authorities

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Legislation

  • Employment Actsection 90

Cases cited (1)

  • Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (dispute arising out of a contract of service)

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, "David Juma Akite v Amos Maina Mutero T/A Summerland Hotel [2015] KEELRC 1147 (KLR)", Case Analysis (2015). Cause commenced 25 August 2014 (Memorandum of Claim dated 4th August, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1147/eng@2015-04-17

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