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ELRCDismissedNot stated in the judgment· [2015] KEELRC 1508 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Kyaume Farmers Co-operative Society Limited [2015] KEELRC 1508 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
15 January 2015
ANAbuodha J. N.
609 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that preliminary objections can't be used to dodge claims that need evidence, so this case goes to full trial.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Industrial Court at Nairobi delivered by Abuodha J on 15 January 2015, determining preliminary objections raised by the Respondents against a claim by the Claimants. The Respondents objected that the claim was statute barred (alleging the cause of action accrued in 1996), that it was res judicata in light of a Kangundo case, and that there was misjoinder of parties. Applying the classic definition of a preliminary objection in Mukisa Biscuit Co. v West End Distributors, the court held that the objections failed that test. Whether the cause of action accrued in 1996 or in 2010, when the Ministry of Labour communicated its recommendation, was a factual question requiring evidence. Further, drawing on Kenya Plantation and Agricultural Workers Union v Mununga Leef Base, the court held that labour dispute resolution is a process and that once prescribed dispute resolution mechanisms are invoked, the accrued cause of action is suspended pending the outcome of conciliation. On res judicata, the issues and parties in the Kangundo case were not made available, so the objection could not be determined. Misjoinder was held not to go to the root of the suit since it is curable by amendment, including striking out a wrongfully joined party. The court overruled the preliminary objection and directed that the case proceed to full trial on merit.

Key legal issues

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01

Whether limitation can be determined by way of preliminary objection

Holding

No - when the cause of action accrued is a factual question requiring evidence

Reasoning

The Respondents contended the cause of action accrued in 1996 while the Claimants say it accrued in 2010 upon the Ministry of Labour's recommendation. Ascertaining accrual requires leading evidence and examining documents, which is incompatible with a preliminary objection proceeding on assumed pleaded facts.

p. 1
02

Whether the dispute resolution process suspends limitation

Holding

Yes - the cause of action is suspended once prescribed dispute resolution mechanisms are invoked

Reasoning

Relying on KPAWU v Mununga Leef Base, the court held that resolution of labour disputes is a process in which the Court is often the final arbiter; invocation of prescribed mechanisms suspends the accrued cause of action until the conciliation outcome is known.

p. 2
03

Whether res judicata and misjoinder were proper preliminary objections

Holding

No - res judicata required the Kangundo case papers which were not provided, and misjoinder is curable

Reasoning

Res judicata requires comparison of issues and parties in the prior suit; these were not made available, so the objection could not be resolved as a pure point of law. Misjoinder does not go to the root of the claim and is curable by amendment including striking out a wrongfully joined party.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law on assumed pleaded facts and cannot be raised where facts must be ascertained or discretion exercised
  • Where a disputant invokes prescribed dispute resolution mechanisms, the accrued cause of action is suspended pending the outcome of conciliation
  • Misjoinder of parties is not a preliminary objection going to the root of a suit; it is curable by amendment

Court orders

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  1. 1.Preliminary objection overruled
  2. 2.The case to proceed to full trial on merit

Authorities

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Legislation

  • Limitation of Actions Act (implied by the limitation objection)Not specified

Cases cited (2)

  • Mukisa Biscuit Co. v. West End Distributors
    (1969) E.A. 696
  • Kenya Plantation and Agricultural Workers Union Vs. Mununga Leef Base
    (2013) eKLR
Jurisdiction invoked
Jurisdiction of the Industrial Court over labour and employment disputes (not expressly cited in the ruling)

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 Commercial, Food and Allied Workers v Kyaume Farmers Co-operative Society Limited [2015] KEELRC 1508 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1508/eng@2015-01-15

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