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ELRCStruck OutNot stated in judgment· [2018] KEELRC 535 (KLR)

Boniface Wachira Kariuki v Nyeri County Government [2018] KEELRC 535 (KLR)

Employment and Labour Relations Court
22 November 2018
NMNzioki wa Makau
888 words in judgment
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The bottom line

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A Kenyan worker's unfair dismissal suit was struck out because it was filed over six months past the three-year legal deadline.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nyeri on a preliminary objection dated 9th April 2018 raised by the 1st Respondent, supported by the 2nd Respondent, contending that the Claimant's suit was filed out of time contrary to Section 90 of the Employment Act. The suit was filed on 21st February 2018, yet the Claimant pleaded that he was dismissed on 4th August 2014. The Claimant opposed the objection, arguing that a preliminary objection cannot be raised where the Respondents had filed no pleadings, relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and John Mathu Ndung'u v B.O.M Ihwa Secondary School. The court applied the Mukisa Biscuits threshold, holding that a preliminary objection on limitation is a pure point of law argued on the assumption that the facts pleaded by the claimant are correct; here the 1st Respondent accepted the pleaded date of dismissal, distinguishing the Ndung'u case where facts had to be ascertained. Following the Court of Appeal decision in Attorney General v Andrew Maina Githinji, the court held that the three-year limitation period expired on 4th August 2017 and the suit, filed in February 2018, was time barred and not viable. The suit was struck out with no order as to costs. Judgment delivered on 22nd November 2018 by Nzioki wa Makau, Judge.

Key legal issues

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01

Limitation under Section 90 of the Employment Act

Holding

A claim for unfair termination must be filed within three years of the cause of action accruing; a suit filed after that period is time barred and not viable.

Reasoning

The Claimant pleaded dismissal on 4th August 2014, so the three-year period ran to 4th August 2017. The suit was filed on 21st February 2018, well outside the statutory period. The court agreed with Court of Appeal authority that limitation under Section 90 is mandatory and ousts jurisdiction, leaving no discretion to excuse the delay.

p. 2
02

Whether a preliminary objection can be sustained absent pleadings by the objector

Holding

Yes - where the objector accepts the facts as pleaded by the claimant, the objection raises a pure point of law and is properly raised.

Reasoning

The court distinguished John Mathu Ndung'u v B.O.M Ihwa Secondary School, where facts had to be ascertained and the objection 'hung in the air'. Here the 1st Respondent did not dispute the pleaded facts, including the date of dismissal, and the objection rested purely on the law of limitation, satisfying the Mukisa Biscuits threshold.

p. 2

Legal principles established

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  • A court has no jurisdiction to entertain a suit that is time barred under Section 90 of the Employment Act
  • A preliminary objection on limitation may be raised on the assumption that facts pleaded by the other side are correct, even where the objector has filed no pleadings

Court orders

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  1. 1.The Claimant's suit is struck out as time barred under Section 90 of the Employment Act
  2. 2.No order as to costs
Jurisdiction invoked
Section 90 of the Employment 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, "Boniface Wachira Kariuki v Nyeri County Government [2018] KEELRC 535 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/535/eng@2018-11-22

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