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ELRCDismissedCause No E013 of 2022· [2023] KEELRC 115 (KLR)

Khanda v Maseno University (Cause E013 of 2022) [2023] KEELRC 115 (KLR)

Employment and Labour Relations Court
26 January 2023
CBChristine N. Baari
1,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to throw out a claim as untimely because when the clock started ticking is a factual question for trial.

What this practically means

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Executive summary

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The Respondent filed a Notice of Preliminary Objection dated 21st October 2022 seeking to strike out the Claimant's claim as statute barred under Section 90 of the Employment Act, 2007. The Respondent argued that the Claimant's contract lapsed in December 2018 and the suit, filed on 14th March 2022, exceeded the three-year limitation period, relying on Joseph Mejala Peralta v Vigelo and Gero Construction Company Limited, Fred Mudave Gogo v G4S Security Services Limited, and Owners of Motor Vessel Lilian 's' v Caltex Oil (K) Limited. The Claimant opposed through grounds of opposition and a replying affidavit, contending that he held multiple contracts (issued 8th June 2018 and 28th July 2020), served part-time as a lecturer, and that the commencement of the cause of action was ambiguous and could only be determined at trial. Both parties filed written submissions. The court, per Christine N. Baari J, restated Section 90 of the Employment Act and the rule that employment claims must be filed within three years of accrual with no extension permitted. Applying the Mukisa Biscuit formulation, the court held that a preliminary objection cannot be raised where facts must be ascertained. Since the pleadings did not clearly show when the Claimant's contract terminated or when the cause of action accrued, limitation was a question of fact for trial. The Preliminary Objection was dismissed as lacking merit, with costs of the application to bide the cause.

Key legal issues

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01

Whether the claim is time barred under Section 90 of the Employment Act, 2007

Holding

The court could not determine limitation at the preliminary stage because the pleadings do not clearly show when the contract lapsed and the cause of action accrued; the objection was dismissed

Reasoning

Section 90 requires employment claims to be filed within three years of accrual, with no extension possible. The Respondent asserted the contract lapsed in December 2018 and suit filed 14th March 2022 was out of time. However, the Claimant averred multiple contracts (8th June 2018 and 28th July 2020) and part-time service. The pleadings were unclear on the termination date, making accrual a question of fact for trial, not resolvable on a preliminary objection.

p. 3
02

Whether the objection is a valid preliminary objection on a point of law

Holding

Applying Mukisa Biscuit, a limitation plea is a proper preliminary objection only if it rests on a pure point of law; here it depended on facts to be ascertained

Reasoning

The court adopted the Mukisa Biscuit formulation: a preliminary objection must be a point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained. Because the accrual date of the Claimant's cause of action depended on contested factual circumstances of his successive contracts, the objection failed that test.

p. 3

Legal principles established

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  • A preliminary objection cannot succeed where facts must be ascertained or where the objection depends on facts not clear on the pleadings
  • Employment claims under Section 90 of the Employment Act must be filed within three years of accrual of the cause of action, with no latitude to extend

Court orders

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  1. 1.The Preliminary Objection is dismissed as lacking merit
  2. 2.The costs of the application shall bide the cause

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)

Cases cited (4)

  • Joseph Mejala Peralta v Vigelo and Gero Construction Company Limited (VGCL)
    (2022) eKLR
  • Fred Mudave Gogo v G4S Security Services Limited (K)
    (2014) eKLR
  • Owners of Motor Vessel Lilian "s" v Caltex Oil (K) Limited
    (1989) KLR 1
  • Mukisa Biscuit Manufacturing Co. Ltd –vs West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over employment disputes; objection founded on Section 90 of the Employment Act, 2007

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, "Khanda v Maseno University (Cause E013 of 2022) [2023] KEELRC 115 (KLR)", Case Analysis (2023). Cause No E013 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/115/eng@2023-01-26

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