Bernard Kamau Kariuki & 37 others v Kenya Planters Co-operative Union [2018] KEELRC 962 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on limitation qualifies as a point of law under the Mukhisa Biscuits test
It qualifies, as it arises from the pleadings and requires no evidence.
Applying the classic definition in Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, the court held that a plea of limitation is a pure point of law. Since the objection arose from the pleadings and was capable of being determined without any evidence, it was competent to be determined in limine.
Whether the suit filed on 3.7.2017, about 8 years after the dues accrued, was barred by Section 90 of the Employment Act
Yes, the suit was statute barred; the 3-year limitation period is mandatory and no extension is permitted.
The court found that the dues accrued in October 2009 when the respondent was placed under receivership, and the suit was filed in 2017. Section 90 is couched in mandatory terms, and the legislature intended to reduce the period from 6 years under the Limitation of Actions Act to 3 years. Receivership did not suspend time or deprive the company of capacity to be sued.
Whether the respondent's receivership suspended the accrual of the cause of action or barred suit against her
No; the claimants retained the right to institute civil proceedings against the respondent for pre-receivership dues, subject only to any stay sought by the Receiver under the Companies Act.
The court rejected the argument that receivership stripped the respondent of corporate status and identity. Parliament could not have closed claimants out of their right of access. The claimants could have sued during receivership; the Receiver could only seek a stay under sections 223, 228 and 251 of the Companies Act (repealed). Receivership therefore neither tolled time nor extinguished capacity to be sued.
Legal principles established
#- A plea of limitation is a competent preliminary objection that may dispose of the suit without evidence
- The three-year limitation period in Section 90 of the Employment Act is mandatory and admits of no extension
- A company under receivership retains its corporate status and may still be sued; receivership does not suspend time for filing suit
Court orders
#- 1.The Preliminary Objection by the respondent is upheld
- 2.The suit is struck out for being statute barred
- 3.Each party to bear his or her own costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under the Employment Act, Section 90
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Kamau Kariuki & 37 others v Kenya Planters Co-operative Union [2018] KEELRC 962 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/962/eng@2018-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.