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ELRCDismissedNot stated in the judgment excerpt· [2021] KEELRC 1345 (KLR)

Kerosi Ondieki v County Assembly Service Board, Kisii & 2 others [2021] KEELRC 1345 (KLR)

Employment and Labour Relations Court
1 July 2021
RSRadido Stephen
387 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out the county's attempt to dismiss a former Speaker's employment claim because the county failed to file its legal submissions on time.

What this practically means

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Executive summary

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The Claimant, Kerosi Ondieki, served as Speaker of the County Assembly of Kisii from 2013 to 2017. On 4 October 2019 he sued the County Assembly Service Board, the Clerk of the County Assembly and the County Government of Kisii, alleging breach of contract in respect of house allowance, travel reimbursements, non-practice (prosecutorial) allowance, continuous professional development and gratuity. The County Assembly Service Board and the Clerk filed a Notice of Preliminary Objection on 28 November 2019 contending that the claim, in so far as it concerned continuing injuries or damages, was time barred under section 90 of the Employment Act, 2007, depriving the Court of jurisdiction, and that the Claimant's right to sue having lapsed, the claim was an abuse of court process. On 11 March 2021 the Court directed the parties to file and exchange submissions within fixed timelines. The Respondents failed to file their submissions by the hearing date. The Court held that by failing to file and serve submissions the Respondents had failed to develop the proposition that the cause of action constituted continuing injury within the meaning of section 90 of the Employment Act, and declined to second guess or speculate on the objection. Noting also an unresolved question about the Respondents' legal representation, the Court dismissed the Notice of Preliminary Objection with costs to the Claimant. The substantive claim remains for determination; this ruling disposed only of the preliminary objection.

Key legal issues

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01

Whether the claim was time barred under section 90 of the Employment Act, 2007

Holding

The preliminary objection was dismissed because the Respondents failed to prosecute it through submissions, leaving the contention undeveloped.

Reasoning

The Respondents filed a Notice of Preliminary Objection contending that continuing injuries were time barred under section 90 of the Employment Act and that the claim was an abuse of process. The Court directed parties to file and exchange submissions on fixed timelines. The Respondents did not comply, so the Court declined to speculate on the undeveloped objection and dismissed it with costs.

p. 1

Legal principles established

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  • A party who fails to file submissions as directed fails to develop its preliminary objection, and the court will not second guess or speculate on it.

Court orders

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  1. 1.The Notice of Preliminary Objection is dismissed with costs to the Claimant

Authorities

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Legislation

  • Employment Actsection 90
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 invoked by Respondents); suit alleging breach of contract of employment

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, "Kerosi Ondieki v County Assembly Service Board, Kisii & 2 others [2021] KEELRC 1345 (KLR)", Case Analysis (2021). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1345/eng@2021-07-01

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