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ELRCDismissed· [2018] KEELRC 506 (KLR)

Gilbert Murithi Njagi & 5 others v Njue Njagi Kaithungu & 4 others [2018] KEELRC 506 (KLR)

Employment and Labour Relations Court
23 November 2018
612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Respondent raised a preliminary objection dated 28th May 2018 in a claim for unlawful and unfair termination of employment and non-payment of terminal dues. The objection had two limbs: first, that the Respondents (officials of a co-operative society) were improperly enjoined since suit should have lain against the society under Section 12 of the Co-operative Societies Act Cap 490; second, that the suit was time barred under Section 90 of the Employment Act, the Respondent contending the cause of action arose in 2012. Before the hearing, the Claimant filed an amended memorandum of claim naming the Co-operative Society as Respondent, removing the officials as parties and mooting the first limb, which the court declined to consider. The Respondent relied on Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & Another, arguing that a limitation period fixed by statute cannot be extended by a court. The Claimant relied on Kenya Commercial Bank v Titus Kilonzo Mutua and William Kiprono Towett & 1597 Others v Farmland Aviation Ltd, asserting the cause of action arose on 3rd March 2017. Applying the Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd test, the court held that the disputed date of dismissal and accrual of the cause of action meant the objection was not a pure point of law, as facts would have to be ascertained. The preliminary objection was dismissed with no order as to costs.

Key legal issues

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01

Whether the suit was time barred under Section 90 of the Employment Act such that it should be struck out

Holding

The objection failed because the date the cause of action arose was disputed and required ascertainment of facts, disqualifying it as a preliminary objection

Reasoning

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.

02

Whether the Respondents were improperly enjoined contrary to Section 12 of the Co-operative Societies Act

Holding

The issue was rendered moot by the Claimant's amended memorandum of claim naming the Co-operative Society as Respondent

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 28th May 2018 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Co-operative Societies Act Cap 490, Laws of KenyaSection 12
  • Employment ActSection 90

Cases cited (4)

  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & Another
    [2016] eKLR
  • Kenya Commercial Bank v Titus Kilonzo Mutua t/a Mbwala Agencies & 24 Others
    [2006] eKLR
  • William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others
    [2016] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
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

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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, "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.