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ELRCDismissedAppeal No. 11 of 2020· [2021] KEELRC 1399 (KLR)

Nakuru War Memorial Hospital v Penvilia Chepkemoi [2021] KEELRC 1399 (KLR)

Employment and Labour Relations Court
22 June 2021
1,549 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that time-limit objections cannot be used to dismiss a case early if the timing itself is disputed and needs evidence.

What this practically means

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Executive summary

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The appellant, Nakuru War Memorial Hospital, appealed against a ruling of Hon. J.B Kalo in Nakuru CMEL Cause Number 25 of 2018 delivered on 7th July 2020. The respondent, a former employee suspended on 12th May 2014 following her arrest over an alleged theft of Kshs. 149,700, was acquitted of criminal charges on 9th June 2017. She claimed constructive dismissal after the hospital failed to reinstate her. When she filed her memorandum of claim on 23rd July 2018, the appellant raised a preliminary objection on 30th August 2018 asserting the suit was statute-barred under section 90 of the Employment Act, having been filed more than three years after the cause of action arose. The trial court ruled that the limitation issue be raised and determined in the main suit rather than as a preliminary point. The appeal proceeded by written submissions. The appellant argued that preliminary objections must be dealt with first and that limitation can dispose of a suit summarily, while the respondent argued that the date the cause of action arose was disputed, since her suspension was to run until determination of the criminal case, and thus the objection involved facts and fell outside the Mukisa Biscuits threshold. The court applied Mukisa Biscuits, holding that a preliminary objection must be a point of law, and since there was contention on when the cause of action arose, evidence would be needed to resolve it. The court found the trial magistrate did not err, dismissed the appeal with costs to the respondent, and remitted the file to the trial court for hearing of the main claim.

Key legal issues

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Whether limitation of actions can be determined as a preliminary objection where the date the cause of action arose is contested

Holding

The preliminary objection on limitation could not be determined summarily because there was contention on when the cause of action arose, requiring evidence; the trial magistrate correctly directed that it be determined with the main suit

Reasoning

Applying Mukisa Biscuits, a preliminary objection must be a pure point of law. Here the respondent contended that the suspension letter stated it would run until the criminal case was determined on 9th June 2017, with the cause of action arising thereafter, while the appellant relied on the 2014 suspension date. Since resolving when the cause of action arose would require evidence, the objection went beyond a point of law and could not dispose of the suit at the preliminary stage.

p. 2

Legal principles established

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  • Where a preliminary objection requires factual evidence to resolve, it falls outside the ambit of a proper preliminary objection

Court orders

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  1. 1.The appeal is dismissed with costs to the claimant respondent
  2. 2.The file is remitted back to the trial court for hearing of the main claim

Authorities

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Legislation

  • Employment Actsection 90

Cases cited (7)

  • Teachers Service Commission v Jane Awino Owoko
    [2020] eKLR
  • Nicholas Kiprop Arap Korir Salat v IEBC & 6 others
    [2013] eKLR
  • Mapema Holdings Limited v Thika Dairies Limited & 4 others
    [2020] eKLR
  • Attorney General & another v Andrew Maina Githinji and another
    [2016] eKLR
  • Mukisa Biscuits
  • Joash Mongare Akunga v National Oil Corporation of Kenya
    [2018] eKLR
  • Insight Management Consultants Limited v Benard Keago Basweti
    [2019] eKLR
On appeal from
Chief Magistrates Court at Nakuru
CMEL Cause Number 25 of 2018
Jurisdiction invoked
Appeal against the decision of the Chief Magistrates Court in CMEL Cause Number 25 of 2018

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, "Nakuru War Memorial Hospital v Penvilia Chepkemoi [2021] KEELRC 1399 (KLR)", Case Analysis (2021). Appeal No. 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1399/eng@2021-06-22

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