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ELRCDismissedNot stated in judgment· [2023] KEELRC 2746 (KLR)

Magena & 4 others (Suing for themselves and on behalf of 132 other Claimants) v Njuca Consolidated Company Limited (Employment and Labour Relations Cause E018 of 2023) [2023] KEELRC 2746 (KLR)

Employment and Labour Relations Court
3 November 2023
1,919 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nyeri (Onesmus N Makau, J) determined a notice of preliminary objection dated 25th July 2023 in which the respondent sought striking out of a representative claim by 138 current and former employees seeking an aggregate of Kshs. 67,946,707 in unpaid salary arrears since 2019, plus general damages, costs and interest. The objection raised two grounds: that the suit was statute barred under section 90 of the Employment Act, and that the claimants lacked authority to sue in a representative capacity. The court framed three issues: whether the objection met the Mukisa Biscuits threshold of a pure point of law, whether the suit was time barred, and whether the representative suit was properly authorised. It held that although both grounds satisfied the threshold, the limitation ground could not succeed because the pleadings lacked material particulars - it was unclear which claimants had left employment and when, and whether the claimed sum had accrued in 2019 or included continuing salary; dismissing the suit on such vague pleadings might defeat claims that were not stale. On authority, the court confirmed most claimants had signed the written authority (with gaps explained by alternative copies) and held the suit remains competent for those who signed, though the paperwork was untidy. The preliminary objection was dismissed with no order as to costs, the claimants were granted 21 days to amend their pleadings and supply missing particulars, the respondent got 21 days after service to file a defence, and the suit was set for pre-trial directions on 25th January 2024.

Key legal issues

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01

Threshold for a preliminary objection

Holding

Both grounds raised pure points of law and met the Mukisa Biscuits threshold

Reasoning

The court adopted the Mukisa Biscuits definition that a preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the other side are correct. The jurisdiction/limitation ground and the authority-to-sue ground both satisfied this test because neither requires evidence to establish, and either would dispose of the suit if upheld.

p. 3
02

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

Holding

Not safe to uphold the objection; the pleadings lack material particulars on who is still employed, who left and when, and whether the claim accrued wholly in 2019

Reasoning

Section 90 bars claims filed beyond three years unless the injury is continuing. The Memorandum of Claim alleged continuous non-payment since 2019 by both past and present employees but did not specify which claimants left employment and when, nor whether the Kshs. 67,946,707 claimed accrued in 2019 or includes later salary. Upholding limitation on such vague pleadings might defeat claims that are not stale, so the claimants were given leave to amend.

p. 4
03

Whether the claimants had authority to institute a representative suit

Holding

Sufficient written authority was on record for those who signed; the suit remains competent for them even if a few did not sign

Reasoning

The court perused the four authority copies marked 1A-D and confirmed most claimants signed, with gaps explained by persons signing in alternative copies. Notice of the suit was published at the respondent's premises without objection. Relying on the requirement of written authority, the court held the suit cannot be rendered incompetent merely because some of the 138 claimants did not sign; those who signed may proceed.

p. 4

Legal principles established

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  • A preliminary objection must rest on a pure point of law, not facts or the exercise of discretion
  • A party suing on behalf of others must first obtain written authority from them
  • Employment claims must be commenced within three years, or within twelve months of cessation in the case of continuing injury

Court orders

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  1. 1.Notice of preliminary objection dismissed
  2. 2.Claimants granted leave of 21 days to amend pleadings and provide missing material particulars
  3. 3.Respondent granted 21 days after service of the amended Claim to file defence
  4. 4.Suit fixed for mention for pre-trial directions on 25th January 2024

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions Act (Cap. 22)Section 4(1)
  • Civil Procedure RulesOrder 4 Rule 3
  • Constitution of KenyaArticle 159
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (4)

  • Fred Mundari v G4S Security
    [2014] eKLR
  • John Kariuki and 347 others v John Mungai Njunge & 8 Others
  • Mukhisa Biscuits Manufacturing co. Ltd v West End Distributors Ltd
    [1969] E.A 696 / [1969] EA 699
  • Ndungu Mugoya & 473 others v Stephen Wang'ombe & 9 others
    [2005] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; ELRC Procedure Rules)

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, "Magena & 4 others (Suing for themselves and on behalf of 132 other Claimants) v Njuca Consolidated Company Limited (Employment and Labour Relations Cause E018 of 2023) [2023] KEELRC 2746 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2746/eng@2023-11-03

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