Monicah Wanjiku Kanyingi v Our Lady of Mercy Secondary School [2018] KEELRC 990 (KLR)

The court held that the claimant's authorities on conciliation tolling time were valid only for claims under the repealed Trade Disputes Act, under which the Minister referred disputes to court. The Labour Relations Act, its successor, has different and shorter timelines, and neither statute provides that time stops running upon conciliation. The referral therefore did not avail the claimant as a defence to the limitation plea.

The claimant argued that the time spent in conciliation should not count towards the three-year limitation period and that limitation was a procedural technicality under Article 159(2)(c) and Section 15 of the Employment and Labour Relations Court Act. The court rejected this, holding that limitation is jurisdictional, and once a claim is statutorily barred the court must strike it out unless valid grounds such as disability exist.

The court adopted the definition of a preliminary objection in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd, which requires a pure point of law argued on the assumption that all facts pleaded are correct. Whether the claim discloses a cause of action would require evidence and cannot be resolved as a preliminary point.

Relying on DT Dobie & Company (Kenya) Ltd v Muchina and Wenlock v Moloney, the court held that striking out is discretionary, not mandatory, and should not be exercised where the defect is curable by amendment. The definition of 'employer' in the Employment Act includes an agent, foreman, manager or factor, so an employee may sue the employer in the name by which she knows it.