Gilbert Murithi Njagi & 5 others v Njue Njagi Kaithungu & 4 others [2018] KEELRC 506 (KLR)
The bottom line
#A Kenyan employment court refused to strike out a dismissal claim because the real dispute over when it was filed required evidence, not a shortcut objection.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was time barred under Section 90 of the Employment Act such that it should be struck out
The objection failed because the date the cause of action arose was disputed and required ascertainment of facts, disqualifying it as a preliminary objection
The Respondent asserted the cause of action arose in 2012, while the Claimant asserted it arose on 3rd March 2017 upon constructive dismissal. The Claimant's pleadings did not state when he was dismissed. Because the limitation defence depended on contested facts and the court would have to ascertain them, the objection was not a pure point of law under the Mukisa Biscuit test and could not succeed at the preliminary stage.
Whether the Respondents were improperly enjoined contrary to Section 12 of the Co-operative Societies Act
The issue was rendered moot by the Claimant's amended memorandum of claim naming the Co-operative Society as Respondent
Before the preliminary objection was heard, the Claimant filed an amended memorandum of claim naming the Co-operative Society as the Respondent, thereby removing the society's officials as parties. The court held this dealt with the first limb of the objection, which therefore required no consideration.
Legal principles established
#- A preliminary objection must raise a pure point of law on assumed pleaded facts; it cannot be raised where facts must be ascertained or where judicial discretion is sought
- Where the limitation period depends on when the cause of action arose and the pleaded facts on that date are disputed, the issue cannot be determined by way of preliminary objection
Court orders
#- 1.The preliminary objection dated 28th May 2018 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Co-operative Societies Act Cap 490 and Employment Act raised in the preliminary objection)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gilbert Murithi Njagi & 5 others v Njue Njagi Kaithungu & 4 others [2018] KEELRC 506 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/506/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.