Joash Mong'are Akunga v National Oil Corporation of Kenya [2016] KEELRC 1642 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Test for a preliminary objection
The objection failed the Mukhisa Biscuit test because it required ascertainment of facts, namely the exact time of termination
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.
Date of accrual of the cause of action / constructive dismissal
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
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated 22nd June 2015 is dismissed
- 2.Each party to bear its own costs in the matter
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, 2007; Limitation of Actions Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.