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ELRCStruck OutNot stated in the judgment text provided (memorandum of claim dated 30 July 2015, filed 21 September 2015)· [2020] KEELRC 1654 (KLR)

Paul Mutua Mang’eng’e v New Kimutwa Butchery Limited [2020] KEELRC 1654 (KLR)

Employment and Labour Relations Court
13 February 2020
2,261 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a six-year-old work dispute because Section 90 gives you only three years to sue.

What this practically means

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Executive summary

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The claimant, Paul Mutua Mang'eng'e, sued by memorandum of claim dated 30 July 2015 alleging that in 2009, on returning from leave, the respondent's Director told him to proceed on unpaid leave as business was low and that he would be recalled. The respondent filed a notice of preliminary objection dated 20 September 2018 seeking dismissal of the suit as time barred under Section 90 of the Employment Act, which requires suits arising from a contract of service to be commenced within three years. The respondent relied on authorities holding that the cause of action accrues on termination of employment. The claimant countered that no proper preliminary objection lay because whether he absconded or was terminated was a factual question, citing Dickson Munene Nkanata v Bunham Limited, and relying on Mukhisa Biscuit for the principle that a preliminary objection must be a pure point of law. The court, Maureen Onyango J, framed two issues: validity of the preliminary objection and whether the claim was statute barred. Applying Mukhisa Biscuit, the court held the objection raised a pure point of law since the claimant's own pleadings showed he was last employed in 2009 and never pleaded returning to work; a demand letter cannot found a cause of action, and his last NSSF contribution was in May 2009. The cause of action having arisen in 2009, the suit filed in 2015 was about six years late and statute barred. The preliminary objection succeeded and the suit was struck out with no orders for costs.

Key legal issues

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01

Whether the preliminary objection was a proper pure point of law

Holding

The objection was valid; the claimant's own pleadings unequivocally established that he was last in employment in 2009, so no facts needed to be ascertained

Reasoning

The claimant argued that whether he absconded or was terminated was a factual dispute unfit for a preliminary objection. The court rejected this, holding that paragraphs 8, 11 and 12 of the memorandum of claim show the claimant was last employed in 2009 and never pleaded returning to work. A demand letter cannot found a cause of action. The NSSF record showing last contribution in May 2009 corroborated the pleadings.

p. 3
02

Whether the claim was statute barred under Section 90 of the Employment Act

Holding

The cause of action accrued in 2009; the suit filed on 21 September 2015 was about six years late and therefore statute barred

Reasoning

Section 90 requires that civil actions arising out of the Employment Act or a contract of service be commenced within three years of the act, neglect or default. The cause of action arose in 2009 when the claimant was told to proceed on unpaid leave. The suit was filed in 2015. The Labour Officer's report also found the claims time barred. The court had no jurisdiction over the late claim.

p. 4

Legal principles established

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  • A suit founded on a contract of service must be commenced within three years of the act, neglect or default complained of; suits filed beyond that period are statute barred and the court has no jurisdiction to entertain them
  • Where the pleadings themselves show the date the cause of action accrued, limitation may be determined as a pure point of law on a preliminary objection

Court orders

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  1. 1.The preliminary objection succeeds
  2. 2.The suit is found statute barred and is struck out
  3. 3.No orders for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment Act, 2007Sections 47 and 71 (as cited in the Labour Officer's report)
  • Limitation of Actions ActSection 4(1)
  • Limitations of Actions Act (Cap 22)Section 4(1)

Cases cited (9)

  • Rift Valley Railways (Kenya) Limited v Hawkins Wagunza Musunye and Another
    (2016) eKLR
  • G4S Security Services (K) Limited v Joseph Kamau and 468 Others
    (2018) eKLR
  • Peterson Waweru Thinwa v Judicial Service Commission
    Civil Appeal No. 57 of 2013
  • Timothy M. Mukalo v Reuben Alubale Shiramba and 3 others
    (2005) eKLR
  • Attorney General and Another v Andrew Maina Githinji and Another
    (2016) eKLR
  • Kenya Union of Commercial, Food and Allied Workers Union v Water Resource Management Authority and Another
    (2015) eKLR
  • Kenya Council of Employment Migration Agencies v Nyamira County Government & 10 others
    [2015] eKLR
  • Mukhisa Biscuit Manufacturing Company Limited v West End Distributors Company Limited
    (1969) E.A. 696
  • Dickson Munene Nkanata v Bunham Limited
    (2018)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 90 on limitation invoked); matter arising from a contract of service

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, "Paul Mutua Mang’eng’e v New Kimutwa Butchery Limited [2020] KEELRC 1654 (KLR)", Case Analysis (2020). Not stated in the judgment text provided (memorandum of claim dated 30 July 2015, filed 21 September 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1654/eng@2020-02-13

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