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ELRCDismissedNot stated in judgment· [2018] KEELRC 2228 (KLR)

John Mathu Ndung’u v B.O.M Ihwa Secondary School [2018] KEELRC 2228 (KLR)

Employment and Labour Relations Court
2 February 2018
642 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Before the Employment and Labour Relations Court at Nyeri, the Respondent raised a preliminary objection arguing that the Claimant's suit was statutorily time barred, having been instituted outside the 3-year limitation period prescribed by Section 90 of the Employment Act, 2007, and that no statutory notice had been issued under Section 3(2) of the Public Authorities Act, Cap. 39. The objection was canvassed by written submissions, with the Respondent citing five authorities on limitation and extension of time. The court, Nzioki wa Makau J, applied the locus classicus on preliminary objections, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors, quoting both Law JA and Sir Charles Newbold PB on the requirement that a preliminary objection be a pure point of law arising from pleadings and not depend on ascertainment of facts or judicial discretion. The court held that the objection was improperly raised: the Respondent had filed no pleadings, so the objection 'hangs in the air', and aspects of the point, such as whether the Claimant took leave or absconded from duty, would require facts to be ascertained. On limitation itself, the court noted that other than the bare assertion that limitation had set in, there was no clarity on the issue. The preliminary objection was dismissed with costs to the Claimant. The substantive limitation question remains open for determination in the main suit.

Key legal issues

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01

Whether the suit is time barred under Section 90 of the Employment Act

Holding

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.

Reasoning

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.

p. 2
02

Whether the objection qualifies as a proper preliminary objection

Holding

The preliminary objection was improperly raised and fell for dismissal with costs to the Claimant.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection raised falls for dismissal with costs to the Claimant

Authorities

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Legislation

  • Employment ActSection 90
  • Public Authorities Act, Cap. 39 Laws of KenyaSection 3(2)

Cases cited (6)

  • Maria Machocho v Total Kenya Limited
    [2013] eKLR
  • Peter Nyamai & 7 Others v M. J. Clarke Limited
    [2013] eKLR
  • John Michael Wanjau v Municipal Council of Eldoret
    [2013] eKLR
  • Samuel Waweru v Geoffrey Muhoro Mwangi
    [2014] eKLR
  • Attorney General & Another v Andrew Maina Githinji & Another
    [2016] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors
    (1969) EA 696
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; limitation under Section 90 of the Employment Act, 2007

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, "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.