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ELRCDismissedNot stated in judgment· [2016] KEELRC 1642 (KLR)

Joash Mong'are Akunga v National Oil Corporation of Kenya [2016] KEELRC 1642 (KLR)

Employment and Labour Relations Court
24 February 2016
1,324 words in judgment
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The bottom line

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Kenya's Employment Court dismissed an attempt to strike out a time-barred employment claim, ruling that limitation defences require evidence and can't be decided as a pure point of law.

What this practically means

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Executive summary

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The respondent filed a preliminary objection dated 22nd June 2015 seeking dismissal of the claimant's employment claim on two grounds: that it was statute-barred under the Employment Act, 2007, the repealed Employment Act (Cap. 226) and the Limitation of Actions Act; and that it was frivolous, vexatious and an abuse of the court's process. The objection was canvassed by written submissions. The claimant was employed on 29th July 1997, confirmed on 16th January 1998, and suspended by letter on 12th April 2001, never being recalled. The respondent contended that non-payment of salary amounted to constructive dismissal ending employment in December 2002, so the claim filed years later was caught by the six-year contractual limitation period, relying on Divecon v Samani. The claimant maintained that no termination occurred, that the contract subsisted, and that under section 4(4) of the Limitation of Actions Act, as applied in Andrew Maina Githinji, the cause of action was grounded on his acquittal in 2013. The court, applying the Mukhisa Biscuit test for preliminary objections, held that the objection could not succeed because it required scrutiny of further data and evidence to establish the exact time of termination, and was therefore not a pure point of law. The court also found the respondent's constructive-dismissal theory unsustainable and endorsed the claimant's reliance on section 4(4). The preliminary objection was dismissed with each party bearing its own costs. Judgment was delivered on 24th February 2016 by D.K.Njagi Marete, J.

Key legal issues

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01

Test for a preliminary objection

Holding

The objection failed the Mukhisa Biscuit test because it required ascertainment of facts, namely the exact time of termination

Reasoning

The court adopted the classic formulation in Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors, under which a preliminary objection must be a pure point of law that can dispose of the suit without ascertaining facts. Since determining whether the claim was time-barred depended on establishing when termination actually occurred, the objection was improper and was dismissed.

p. 3
02

Date of accrual of the cause of action / constructive dismissal

Holding

The respondent's reliance on constructive dismissal to fix a termination date of December 2002 was not sustainable; the claimant's reliance on the 12-year period under section 4(4) of the Limitation of Actions Act following acquittal was the applicable position

Reasoning

The respondent argued that non-payment of salary constituted constructive dismissal ending employment in December 2002, triggering the six-year contractual limitation period. The court rejected that approach as unsustainable. It instead endorsed the claimant's reliance on section 4(4) of the Limitation of Actions Act as applied in Andrew Maina Githinji, grounding the cause of action on the acquittal order.

p. 3

Legal principles established

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  • A preliminary objection must consist of a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if facts must be ascertained or discretion exercised
  • A limitation-based preliminary objection fails where establishing the accrual date of the cause of action requires scrutiny of evidence on termination

Court orders

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  1. 1.The preliminary objection dated 22nd June 2015 is dismissed
  2. 2.Each party to bear its own costs in the matter

Authorities

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Legislation

  • Employment ActSection 18(5)
  • Employment Act (Repealed)Chapter 226, Laws of Kenya
  • Limitation of Actions ActSection 4(1)
  • Limitation of Actions ActSection 4(4)

Cases cited (6)

  • David Musuwika Musundi v CFC Stanbic Bank
    (2014) eKLR
  • Divecon v Samani
    (1995-1998) EA 48
  • Peter Nyamai & 7 Others v M.J. Clarke Limited
    (2013) eKLR
  • Andrew Maina Githinji & Another v Attorney General & Another
    (2015) eKLR
  • Kenya Petroleum Workers Union v Kenya Pipeline Company Limited
    (2014) eKLR
  • Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Company Limited
    (1969) E.A. 696
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007; Limitation of Actions Act)

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, "Joash Mong'are Akunga v National Oil Corporation of Kenya [2016] KEELRC 1642 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1642/eng@2016-02-24

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