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ELRCOtherNot stated in judgment· [2016] KEELRC 995 (KLR)

Shem Kisanya v County Government of Nairobi & another [2016] KEELRC 995 (KLR)

Employment and Labour Relations Court
1 July 2016
MNMATHEWS NDERI NDUMA
313 words in judgment
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The bottom line

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Kenya's Employment Court refused to strike out an old employment claim because time-limit objections involving disputed facts must wait for a full hearing.

What this practically means

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Executive summary

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This first-instance ruling of the Employment and Labour Relations Court at Nairobi, delivered by Mathews Nderi Nduma, Principal Judge, on 1st July 2016, determined a notice of intention to raise a preliminary objection filed by the respondent on 22nd August 2015. The suit, filed on 19th February 2015, sought terminal benefits for wrongful and unfair termination of employment. The claimant had been retired with effect from 15th June 2003 by a letter dated 3rd February 2010, at age 50, with an appeal to the Public Service Commission apparently still pending internally. The respondent objected that the statement of claim offended section 90 of the Employment Act (which mandates that employment claims be filed within three years) and section 3 of the Public Authorities Limitations Act, and should be struck out. The court held that there was a dispute of fact as to when, if at all, the respondent's internal dispute-resolution machinery was exhausted, and that the retirement effected in 2010 but backdated to 2003 took the matter outside the purview of the Employment Act, 2007 and therefore outside section 90. Because the question of when the cause of action crystallised could not be resolved without examining the facts, the court, applying the Mukisa Biscuits principle, ruled that the preliminary objection must await the hearing on the merits. It awarded costs in the cause.

Key legal issues

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01

Whether the preliminary objection on limitation under section 90 of the Employment Act and section 3 of the Public Authorities Limitations Act can be sustained

Holding

The preliminary objection fails because it depends on disputed facts and must await the hearing on the merits

Reasoning

The court found a dispute of fact as to when the respondent's internal machinery was exhausted, and the retirement effected in 2010 was backdated to 2003, which takes the matter out of the purview of the Employment Act, 2007 and its section 90. The crystallisation of the cause of action for limitation purposes could not be resolved on the pleadings alone without evidence. Applying the Mukisa Biscuits principle that a preliminary objection must rest on pure points of law, the objection was deferred to the hearing on the merits.

p. 1

Legal principles established

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  • A preliminary objection that requires determination of disputed facts cannot be upheld and must await the hearing on the merits

Court orders

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  1. 1.The preliminary objection must await the hearing on the merits
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Public Authorities Limitations Actsection 3

Cases cited (1)

  • Mukisa Biscuits case
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (specific enabling provision not stated in judgment)

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, "Shem Kisanya v County Government of Nairobi & another [2016] KEELRC 995 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/995/eng@2016-07-01

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