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ELRCDismissedNot stated in the judgment excerpt· [2019] KEELRC 2096 (KLR)

Miriam Cherogony v African Rural and Agricultural Credit Association & another [2019] KEELRC 2096 (KLR)

Employment and Labour Relations Court
15 March 2019
RSRadido Stephen
463 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court struck down a bid to dismiss a case, ruling that objections requiring contract interpretation cannot be raised as preliminary objections.

What this practically means

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Executive summary

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The 1st Respondent filed a Notice of Preliminary Objection dated 19 December 2018 in an Employment and Labour Relations Court suit founded on a consultancy agreement signed by the Claimant on 16 July 2015. The objection raised five points: that the consultancy agreement was between the Claimant and PCIO Knowledge Net, who alone were responsible for the contract price; that there was no privity of contract between the Claimant and the 1st Respondent, so the Claimant had no legal right to sue and no actionable cause of action; that the contract contained an arbitration clause ousting the Court's jurisdiction; and that the suit was therefore fatally defective and ought to be struck out or dismissed with costs. The Claimant opposed the objection by a replying affidavit and list of authorities filed on 31 January 2019, and the Court heard arguments on 6 February 2019. Applying the test in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Judge Radido Stephen held that a preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded are correct, and cannot be raised where facts must be ascertained or discretion exercised. The Court found that determining the objections would require detailed examination and interpretation of the tenure and import of the several contracts signed by all parties, removing the objection from the ambit of a preliminary objection. The Notice of Preliminary Objection was dismissed with costs to the Claimant. Judgment was delivered in Nairobi on 15 March 2019.

Key legal issues

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01

Whether the Notice of Preliminary Objection met the Mukisa Biscuit threshold of a pure point of law

Holding

The objection was dismissed because it required factual examination and interpretation of several contracts, taking it outside the proper scope of a preliminary objection

Reasoning

The Court applied the classic test in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, which requires a preliminary objection to raise a pure point of law argued on the assumption that all facts pleaded are correct. The 1st Respondent's objections on privity, cause of action and arbitration required detailed examination and interpretation of the tenure and import of several contracts signed by all parties. Because the objections depended on ascertaining facts and construing contracts, they fell outside the ambit of a preliminary objection and were dismissed with costs to the Claimant.

p. 1

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised

Court orders

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  1. 1.The Notice of Preliminary Objection dated 19 December 2018 is dismissed with costs to the Claimant

Authorities

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Cases cited (1)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the suit, though the specific provision is not cited in the judgment

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, "Miriam Cherogony v African Rural and Agricultural Credit Association & another [2019] KEELRC 2096 (KLR)", Case Analysis (2019). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2096/eng@2019-03-15

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