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ELRCDismissedCause No 14 of 2019· [2023] KEELRC 314 (KLR)

Mwaniki & 10 others v Kenya Institute of Management (Cause 14 of 2019) [2023] KEELRC 314 (KLR)

Employment and Labour Relations Court of Kenya
31 January 2023
HWHellen Wasilwa
2,727 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer lost its bid to argue an employee's salary claim was filed too late because it raised the point only after the hearing ended.

What this practically means

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Executive summary

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This ELRC judgment resolves two interlocutory applications in a long-running salary-arrears claim by three claimants against their former employer, in which judgment on liability was entered on July 13, 2021 for Kshs 5,020,348 in accrued salary arrears, set aside on January 18, 2022 on conditions including throw-away costs of Kshs 110,000 (which cheque bounced), and judgment again entered on May 30, 2022 after the respondent closed its case without calling evidence. The court then directed the parties to reconcile the payable figures. The respondent filed a preliminary objection dated September 14, 2022 arguing that the 2017 salary arrears claim of Kshs 1,925,298 was time barred under section 90 of the Employment Act, relying on George Hiram Ndirangu v Equity Bank Limited and related authorities on continuing injury. It also filed a notice of motion dated October 28, 2022 seeking to re-open its case to produce bank statements evidencing part payments of Kshs 1,169,223. The claimants opposed, contending that the injury ceased in December 2018 and the suit filed February 21, 2019 was within the 12-month window, and that the respondent was merely delaying. Justice Hellen Wasilwa dismissed both. She held the limitation point should have been raised before or during the hearing and was now a matter for appeal, and that the pending submissions would enable the court to determine the exact figures payable without re-opening the defence case. Both applications were dismissed. No costs order was made. Ruling delivered virtually on January 31, 2023.

Key legal issues

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01

Timing of a preliminary objection on limitation of actions

Holding

The preliminary objection was out of time and misconceived; it failed.

Reasoning

The respondent raised the limitation objection only after the hearing had concluded, judgment had been rendered and quantum remained to be reconciled. The court held such an objection should have been raised before or within the hearing. Having not been raised then, the issue was appealable and could not be entertained by the same court at that stage. The objection was therefore dismissed as having no merit.

p. 6
02

Re-opening a closed defence case to produce additional evidence

Holding

The application to re-open the defence case was dismissed; the court declined to admit the bank statements.

Reasoning

The record showed that on May 30, 2022 the respondent elected to close its case without calling any evidence, after being given opportunity to defend following the set-aside judgment. The court reasoned that the pending reconciliation exercise and the parties' submissions would enable it to determine the exact figures payable, so no purpose would be served by re-opening. The application was found without merit and dismissed.

p. 6

Legal principles established

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  • A preliminary objection on limitation, not raised before or during the hearing of a claim that has been heard and determined, cannot be raised afterwards before the same court; it is a matter of appeal.
  • A party who closes its case without tendering evidence cannot thereafter seek to re-open the case to introduce fresh evidence; such material is to be addressed in submissions.

Court orders

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  1. 1.The preliminary objection dated September 14, 2022 is dismissed as having no merit
  2. 2.The notice of motion dated October 28, 2022 seeking to re-open the respondent's case is dismissed for want of merit
  3. 3.The issues pending are to be determined on the parties' submissions

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Act (cap 22)section 4(1)
  • Employment and Labour Relations Court Actsection 20(1)
  • Employment and Labour Relations (Procedure) Court Rulesrule 26(2)
  • Civil Procedure Actsections 1A, 1B & 3A
  • Constitution of KenyaArticle 159(2)(a) & (d)

Cases cited (7)

  • George Hiram Ndirangu v Equity Bank Limited
    [2015] eKLR
  • Ephraim Gachigua Mwangi v Teachers Service Commission & Board of Management Thogoto Teachers College
    [2018] eKLR
  • Justice S Sunyai v Judicial Service Commission and another
    [2017] eKLR
  • Joseph Ndungu Kamau v John Njihia
    [2017] eKLR
  • Samuel Kiti Lewa v Housing Finance Co of Kenya Ltd & another
    [2015] eKLR
  • Simba Telecom v Karuhanga & Anor
    (2014) UGHC 98
  • Smith v New South Wales
    [1992] HCA 36; (1992) 176 CLR 256
Jurisdiction invoked
Employment and Labour Relations Court Act, section 20(1); Employment and Labour Relations (Procedure) Court Rules, rule 26(2); Civil Procedure Act, sections 1A, 1B & 3A; Article 159(2)(a) & (d) of the Constitution of Kenya

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, "Mwaniki & 10 others v Kenya Institute of Management (Cause 14 of 2019) [2023] KEELRC 314 (KLR)", Case Analysis (2023). Cause No 14 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/314/eng@2023-01-31

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