Board of Trustees, Kenya Broadcasting Corporation (KBC) Staff Retirement Benefits Scheme (Suing on behalf of the Scheme) v Kenya Broadcasting Corporation [2019] KEELRC 1484 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the notice of intention to sue served on 25th May 2018 satisfied section 46 of the Kenya Broadcasting Corporation Act
Yes - the notice was served, particulars were communicated, and the suit was filed three months later, satisfying the one-month notice requirement
The claimant's bundle showed a notice served on 25th May 2018 communicating the intention to sue if payment was not made within 7 days. Section 46 requires at least one month's written notice with particulars before commencing proceedings. The court held the statute does not prescribe the form of the notice and that the service of the notice followed by filing suit three months later was sufficient fulfilment of the requirement.
Whether the Court of Appeal's decision in Kenya Broadcasting Corporation v Ann Muthoni Kibiro supports a finding of compliance
Yes - the Court of Appeal held that notice served on the Managing Director before filing suit was sufficient and dismissed the ground on notice
The court cited the Court of Appeal decision where it was held that service of a notice on the Managing Director before filing suit, though perhaps not strictly necessary, satisfied section 46 and that no separate notice was required. The court adopted this reasoning to reject the respondent's argument that the notice was defective.
Whether arguments not pleaded can be entertained by way of submissions
No - arguments in paragraphs 17, 18 and 19 and those regarding strange stamps on the notice were not pleaded and were disregarded
The court held that matters raised in submissions but not pleaded in the respondent's pleadings would be disregarded, and further that contentious factual issues such as the alleged strange stamps on the notice required evidence from the parties and could not be canvassed by submissions alone.
Legal principles established
#- Section 46 of the Kenya Broadcasting Corporation Act does not prescribe the form the notice of intention to sue must take; service of the notice and commencement of the suit after the lapse of at least one month is sufficient compliance
- Contentious issues of fact requiring evidence cannot be determined on submissions alone
Court orders
#- 1.The Respondent's Application dated 11th October 2018 is dismissed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the claimant's employment-related claim (the court notes some claims 'do not concern employee's deductions' but did not uphold that objection); Article 159 of the Constitution and the overriding objective invoked against striking out
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Trustees, Kenya Broadcasting Corporation (KBC) Staff Retirement Benefits Scheme (Suing on behalf of the Scheme) v Kenya Broadcasting Corporation [2019] KEELRC 1484 (KLR)", Case Analysis (2019). Not stated in the judgment (Claimant's Statement of Claim dated 3rd September 2018; Respondent's Application dated 11th October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1484/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.