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ELRCStruck OutNot stated in the judgment· [2023] KEELRC 846 (KLR)

Wanjau v Dedan Kimathi University of Technology (Employment and Labour Relations Petition E007 of 2022) [2023] KEELRC 846 (KLR)

Employment and Labour Relations Court
13 April 2023
OMONESMUS N MAKAU
1,757 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 struck out a lecturer's lawsuit as too late, ruling that a letter asking for documents did not restart the three-year filing deadline.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nyeri (Onesmus N Makau, J) delivered on April 13, 2023 on the respondent's notice of preliminary objection dated November 17, 2022 seeking striking out of the petitioner's constitutional petition. The respondent argued that the claim, founded on a contract of employment which ended on January 30, 2019, was time barred under section 90 of the Employment Act, having been filed on September 29, 2022; that the petition failed the threshold for a constitutional claim; and that it was frivolous and an abuse of process. The petitioner conceded that the ordinary limitation period had lapsed in January 2022 but contended that a letter of May 7, 2021 from the respondent's Legal Officer, responding to a demand letter, acknowledged the debt under section 23 of the Limitation of Actions Act, reviving the claim until May 7, 2024. The court framed three issues: whether the objection raised pure points of law, whether the claim was time barred, and whether the petition met the constitutional threshold. Relying on Mukisa Biscuits, the court held the objection was a pure point of law. It found the May 7, 2021 letter was not an unequivocal acknowledgment of debt since it merely confirmed services were rendered and requested supporting documents; limitation was therefore not revived. The court further held that the petition, claiming liquidated damages for unpaid remuneration, was a purely employment dispute dressed as a constitutional petition to circumvent limitation, failing the Anarita Karimi Njeru threshold. The petition was struck out with costs.

Key legal issues

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01

Whether the preliminary objection raised pure points of law

Holding

Yes - the objection premised on limitation raises pure points of law capable of terminating the suit

Reasoning

Applying the Mukisa Biscuits test, the court held that an objection founded on a plea of limitation is a point of law which, if allowed, disposes of the suit. Since the objection was premised majorly on the claim being time barred, it qualified as a proper preliminary objection.

p. 3
02

Whether the claim was time barred

Holding

Yes - the suit was time barred as the respondent's letter did not amount to an acknowledgment reviving the claim

Reasoning

The cause of action accrued on January 30, 2019 and limitation expired on January 29, 2022. Section 23(3) of the Limitation of Actions Act requires an unequivocal written acknowledgment of the debt. The respondent's May 7, 2021 letter merely confirmed the petitioner had rendered teaching services and requested supporting documents; it did not admit the debt, so limitation was not revived and the suit filed on September 29, 2022 was stale.

p. 4
03

Whether the petition met the threshold for a constitutional claim

Holding

No - the petition was a disguised employment claim filed to circumvent limitation

Reasoning

Applying the Anarita Karimi Njeru standard, the court found that although Articles 27 and 47 were cited, the substance of the petition was a liquidated damages claim under the contract of service, remediable under the Employment Act. The constitutional references were a device to escape section 90 limitation, so the petition failed the competence threshold.

p. 4

Legal principles established

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  • A letter that merely confirms services were rendered and requests supporting documents does not constitute an unequivocal acknowledgment of debt capable of reviving limitation under section 23 of the Limitation of Actions Act
  • A petition filed to circumvent the limitation period under section 90 of the Employment Act, containing a purely employment claim, does not meet the threshold of a constitutional petition

Court orders

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  1. 1.The petition is struck out with costs for being a purely employment claim which is time barred

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 49
  • Employment Actsections 3(3), 9, 5 and 43
  • Limitation of Actions Actsection 23(3)
  • Limitation of Actions Actsection 24
  • Fair Administrative Actions Actsections 3, 4, 5, 6 and 7
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 47
  • ELRC Procedure RulesRule 28(3)

Cases cited (5)

  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696
  • Rift Valley Railways (K) Ltd v Hawkins Wagunza Musonye & Another
    (2016) eKLR
  • Mathew Kamanu Mwaura v Permanent Secretary Office of the President, Provincial Administration & 2 others
    (2018) eKLR
  • Peter Ndegwa Nderitu v Teachers Service Commission
    (2019) eKLR
  • Anarita Karimi Njeru v Republic
    (1979) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; objection based on section 90 of the Employment Act and section 23(3) of the Limitation of Actions Act

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, "Wanjau v Dedan Kimathi University of Technology (Employment and Labour Relations Petition E007 of 2022) [2023] KEELRC 846 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/846/eng@2023-04-13

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