Johnson Kazungu v Kenya Marine & Fisheries Research Institute [2021] KEELRC 1532 (KLR)

Both parties relied on Mukisa Biscuit for the requirement that a preliminary objection arise from pleadings or by clear implication out of them. The Court found no established principle that the objection must stem from the raiser's own pleadings; since the objection was anchored in the claimant's memorandum of claim, it was properly raised. However, a notice of preliminary objection is itself not a pleading under rule 2, and the irregularly filed memorandum of response could not bind the respondent.

Both parties admitted a continuing injury existed. Section 90 prescribes limitation of twelve months after cessation of a continuing injury, not an extension of three years from commencement. The claimant remains in the respondent's employment and pleads ongoing underpayment from the letter dated 21.08.2015. With no evidence of cessation, the limitation bar under section 90 was not engaged and the preliminary objection collapsed wholly.

The respondent submitted that breaches of Articles 41 and 47 required a constitutional petition. The Court referred to Rule 7 of the ELRC (Procedure) Rules, 2016, which notwithstanding its other provisions allows a party to seek enforcement of constitutional rights and freedoms in a statement of claim or other suit before the Court. The composite claim was therefore properly before the Court.