Stephen Mugwe & another v Sameer Group of Companies & another [2018] KEELRC 84 (KLR)
The bottom line
#A Kenyan employment court dismissed a late-filed suit, confirming strict time limits for unfair dismissal and malicious prosecution claims cannot be extended.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection qualifies as a preliminary objection
It does; limitation is a pure point of law within the Mukisa Biscuits paradigm
The court applied the Mukisa Biscuits test, holding that a preliminary objection is raised on pure points of law on the assumption that all facts pleaded by the other side are correct, and that limitation fits squarely within that paradigm alongside jurisdictional objections and arbitration pleas.
Accrual of the cause of action in the employment claim
The cause of action accrued on termination (21st August 2002); the suit filed in November 2008, over 6 years later, was time barred
The court distinguished Mbowa v East Mengo Administration, noting the charges there related solely to malicious prosecution. Following the Court of Appeal in Attorney General v Andrew Maina Githinji, it held the cause of action on the employment issue accrues upon termination, so the employment claim filed over 6 years later was 3 months past the limitation period.
Accrual of the malicious prosecution claim
Time runs from acquittal (28th April 2009); limitation for malicious prosecution is one year, so the suit filed over 2 years 7 months later was out of time
The court accepted the Claimant's counsel was right that for malicious prosecution the cause of action accrues on acquittal, but noted the one-year limitation for tort; filing on 11th November 2011 was therefore clearly out of time.
Legal principles established
#- A plea of limitation goes to the jurisdiction of the court and may be raised in limine and determined first.
- There is no discretion to extend time once limitation has set in, whether for a tort claim or an employment claim.
- In a malicious prosecution claim, limitation runs from the date of acquittal or other termination in favour of the accused.
Court orders
#- 1.Suit dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Mugwe & another v Sameer Group of Companies & another [2018] KEELRC 84 (KLR)", Case Analysis (2018). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/84/eng@2018-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.