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ELRCDismissedCause (as stated in judgment) – Notice of Motion dated 6th November, 2018· [2019] KEELRC 1795 (KLR)

Peter Matano Mnene v Zachariah Kahuthu & 3 others (sued in their Capacities as Trustees of Kenya Evangelical Lutheran Church) [2019] KEELRC 1795 (KLR)

Employment and Labour Relations Court
4 April 2019
1,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to strike out a worker's claim against a church employer, saying the limitation timeline couldn't be decided until the actual dismissal date was settled.

What this practically means

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Executive summary

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The Respondent, Kenya Evangelical Lutheran Church, brought a Notice of Motion dated 6th November 2018 under Sections 1A and 3A of the Civil Procedure Act, Order 2 Rule 15(1) of the Civil Procedure Rules and Section 3 of the Trustees (Perpetual Succession) Act, seeking dismissal of the claim against it as non-suited. It argued first, that as a society registered under the Societies Act Cap 108 it lacks legal capacity to be sued in its own name; and second, that the claim was time barred under Section 90 of the Employment Act, the cause of action having arisen in August 2012 while the Respondent was joined in 2017. The Claimant opposed, contending the application repeated grounds already dealt with in an earlier application dated 30th October 2017 which had led to amendment of the claim, offending Section 7 of the Civil Procedure Act, and that limitation had no basis since the Respondent's own Response denied that the Claimant had been terminated. The court noted the Respondent was introduced through amendment, not a fresh suit, so limitation against it was engaged but contested: the Respondent denied dismissing the Claimant, making the accrual date of the cause of action a matter of contention. It was therefore premature to determine limitation interlocutorily. The application failed and the claim was ordered to proceed to conclusion, with costs in the cause.

Key legal issues

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01

Legal capacity of a society to be sued in its own name

Holding

The court did not determine this issue because the application failed on the limitation point and prematurity; the objection had also been effectively superseded by prior amendments

Reasoning

The Respondent argued that as a religious organisation registered under the Societies Act Cap 108 it lacks legal personality, citing Bridge Hotel Ltd v Wilfred Mutiso Lai Jesus Celebration Center. The court did not resolve this ground, instead finding the application premature and noting the earlier application on capacity grounds had been dealt with through amendment. The suit was ordered to proceed to conclusion.

p. 2
02

Limitation under Section 90 of the Employment Act where a party was added by amendment

Holding

Limitation could not be determined because when the cause of action arose was in contention, the Respondent denying that the Claimant was ever dismissed

Reasoning

The Respondent argued the claim filed in 2017 against the newly introduced party was outside the three-year limitation under Section 90 of the Employment Act. The court, applying Sanyu International Ltd v Oriental Commercial Bank Ltd, noted the Respondent was introduced by amendment, not a fresh suit, and since the Respondent's own pleadings denied any dismissal, the accrual date was contested and it was premature to decide limitation interlocutorily.

p. 3
03

Abuse of process / res judicata regarding repeated applications

Holding

The Claimant argued the application repeated grounds already dealt with in the 30th October 2017 application and amendment, offending Section 7 of the Civil Procedure Act

Reasoning

The Claimant contended that all grounds in the instant application were dealt with in the amendment of the Memorandum of Claim following the earlier application, relying on Uhuru Highway Development Ltd v CBK. The court's reasoning on this ground is not separately articulated, but the application as a whole failed and the claim was directed to proceed.

p. 2

Legal principles established

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  • Where a new party is introduced through an amendment to a claim, it cannot be said that a fresh suit was filed, but limitation against the newly added party runs from the introduction
  • Where the date the cause of action arose is contested on the pleadings, limitation cannot be determined on an interlocutory application

Court orders

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  1. 1.The application by the Respondent fails and the claim is to proceed to conclusion
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 1A(1) and (2)
  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Act (Cap 21)Section 7
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)
  • Trustees (Perpetual Succession) ActSection 3
  • Employment Act No. 11 of 2007Section 90
  • Societies Act (Cap 108)not specified

Cases cited (5)

  • Enock Kirao Muhanji v Hamid Abdalla Mbarak
    (2013) eKLR
  • Fred Mudave Gogo vs G4s Security Services (K) Ltd
    (2014) eKLR
  • Bridge Hotel limited Vs Wilfred Mutiso Lai Jesus Celebration Center
    (2016) eKLR
  • Uhuru Highway Development Limited v CBK & 2 Others
    (1996) eKLR
  • Sanyu International Limited vs Oriental Commercial Back Limited
    (2017) eKLR Civil Appeal No. 11/2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act No. 11 of 2007 and Civil Procedure Act (Cap 21), Sections 1A, 3A and 7

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, "Peter Matano Mnene v Zachariah Kahuthu & 3 others (sued in their Capacities as Trustees of Kenya Evangelical Lutheran Church) [2019] KEELRC 1795 (KLR)", Case Analysis (2019). Cause (as stated in judgment) – Notice of Motion dated 6th November, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1795/eng@2019-04-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.