Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutNot stated in the judgment (Preliminary Objection dated July 30, 2018)· [2022] KEELRC 1389 (KLR)

Magati v Kiatu Co-operative Savings and Credit Society Limited (Cause 818 of 2018) [2022] KEELRC 1389 (KLR)

Employment and Labour Relations Court
5 July 2022
JGJacob Gakeri
1,577 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck out a claim filed more than three years after the events, confirming strict time limits apply to employment disputes.

What this practically means

#

Executive summary

#
The respondent filed a preliminary objection dated July 30, 2018 contending that the claimant's suit was ex-facie incompetent and statutorily time barred. The claimant opposed, contending that he was criminally prosecuted for theft by the respondent and only acquitted on March 18, 2015, so time began running from the acquittal and would expire in 2021. The claimant's counsel was absent when the matter came up on May 10, 2022; the court fixed the preliminary objection for hearing on June 2, 2022 and directed written submissions of one and a half pages, which the claimant failed to file. The court framed two issues: whether the preliminary objection met the legal threshold, and whether the suit was statute barred. Applying the Mukisa Biscuits test, the court held that a plea of limitation is a pure point of law and the objection was properly raised. On limitation, the court found that the claimant had resigned on June 3, 2008, as confirmed by the judgment in Criminal Case No. 944 of 2008, and that his pleadings contained no allegations of termination or of what transpired after the acquittal. Even on the claimant's own contention that time ran from the acquittal on March 18, 2015, the three-year period under Section 90 of the Employment Act lapsed in March 2018, whereas the suit was filed on May 29, 2018. The court found the suit groundless, frivolous and an abuse of court process, struck it out as statute barred, and made no order as to costs.

Key legal issues

#
01

Whether the preliminary objection meets the legal threshold in Mukisa Biscuits

Holding

The objection is a pure point of law on limitation and therefore meets the threshold

Reasoning

The court applied the classic test in Mukisa Biscuits, under which a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct. A plea of limitation is expressly given as an example of a qualifying point. Since the respondent raised only the question of limitation, which requires no ascertainment of disputed facts or exercise of discretion, the objection satisfied the test and had to be determined as a threshold question.

p. 2
02

Whether the suit is statute barred under Section 90 of the Employment Act

Holding

The suit, filed on May 29, 2018, was lodged well outside the three-year limitation period and is struck out

Reasoning

The claimant resigned on June 3, 2008, as confirmed by the judgment in Criminal Case No. 944 of 2008, and his own pleadings did not allege termination or any continuing injury. Even on the claimant's own contention that time ran from his acquittal on March 18, 2015, the three-year period prescribed by Section 90 of the Employment Act lapsed in March 2018, before the suit was filed on May 29, 2018. The suit was therefore ex-facie incompetent and time barred, and was further found to be frivolous and an abuse of process.

p. 3

Legal principles established

#
  • A preliminary objection must be a pure point of law that, if successful, disposes of the suit; a plea of limitation qualifies as such a point
  • A preliminary objection cannot be raised where facts must be ascertained or judicial discretion exercised
  • Under Section 90 of the Employment Act, no civil action based on the Act or a contract of service may be instituted more than three years after the act, neglect or default complained of

Court orders

#
  1. 1.The preliminary objection dated July 30, 2018 is upheld as merited
  2. 2.The suit is struck out for being statute barred
  3. 3.No order as to costs

Authorities

#

Legislation

  • Employment ActSection 90
  • Limitation of Actions Act (Cap 22)Section 4(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] E.A. 696
  • Charles Onchari Ogoti v Safaricom Limited
    [2020] eKLR
  • Hassan Ali Joho & another v Suleiman Said Shabal and 2 others
    [2014] eKLR
  • Nihin Properties Ltd v Singh Kalsi and another
    [1995] eKLR
  • Trust Bank Limited v HS Amin & Company Ltd & another
    [2000] KLR 164
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007; Article 159(2)(d) and Article 48 of the Constitution referenced in the delivery orders

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Magati v Kiatu Co-operative Savings and Credit Society Limited (Cause 818 of 2018) [2022] KEELRC 1389 (KLR)", Case Analysis (2022). Not stated in the judgment (Preliminary Objection dated July 30, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1389/eng@2022-07-05

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