John Mathu Ndung’u v B.O.M Ihwa Secondary School [2018] KEELRC 2228 (KLR)
The bottom line
#A Kenyan court dismissed an employer's attempt to throw out an employment claim on time-bar grounds because the objection was raised without pleadings and needed facts to be checked.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is time barred under Section 90 of the Employment Act
The court did not determine the limitation question on its merits because the objection was improperly raised; other than the assertion that limitation set in, there is no clarity on the issue.
The Respondent argued the suit was filed outside the 3-year period under Section 90 of the Employment Act and that no statutory notice under the Public Authorities Act was issued. The court found, however, that the objection was procedurally defective, and aspects of the limitation point would require facts to be ascertained, such as the taking of leave or absconding from duty, which cannot be resolved by way of a preliminary objection.
Whether the objection qualifies as a proper preliminary objection
The preliminary objection was improperly raised and fell for dismissal with costs to the Claimant.
Applying the Mukisa Biscuit test, a preliminary objection must consist of a pure point of law pleaded or arising clearly out of pleadings. The Respondent had filed no pleadings, so the objection 'hangs in the air'. Further, ascertaining facts about leave or absconding from duty would be necessary, disqualifying the point from being argued as a preliminary objection. The court found the objection improperly raised and dismissed it with costs.
Legal principles established
#- A preliminary objection must be a pure point of law arising from pleadings; it cannot be raised if any fact has to be ascertained or where the Respondent has filed no pleadings.
- Section 90 of the Employment Act prescribes the limitation period for employment claims.
Court orders
#- 1.The preliminary objection raised falls for dismissal with costs to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; limitation under Section 90 of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Mathu Ndung’u v B.O.M Ihwa Secondary School [2018] KEELRC 2228 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2228/eng@2018-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.