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)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Threshold for a preliminary objection
Both grounds raised pure points of law and met the Mukisa Biscuits threshold
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.
Whether the suit is statute barred under section 90 of the Employment Act
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
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.
Whether the claimants had authority to institute a representative suit
Sufficient written authority was on record for those who signed; the suit remains competent for them even if a few did not sign
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.
Legal principles established
#- 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
#- 1.Notice of preliminary objection dismissed
- 2.Claimants granted leave of 21 days to amend pleadings and provide missing material particulars
- 3.Respondent granted 21 days after service of the amended Claim to file defence
- 4.Suit fixed for mention for pre-trial directions on 25th January 2024
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment Act; ELRC Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.