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ELRCOtherNot stated in judgment· [2024] KEELRC 22 (KLR)

Fazal v Fidelity Commercial Bank Limited & another (Cause 220 of 2020) [2024] KEELRC 22 (KLR)

Employment and Labour Relations Court
25 January 2024
LNLINNET NDOLO
466 words in judgment
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The bottom line

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A Kenya employment claim survived a time-limit challenge because the dispute over the employee's actual last working day requires evidence, not a shortcut ruling.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually on 25th January 2024 by Linnet Ndolo J, determines a Preliminary Objection raised by the 2nd Respondent by notice dated 15th September 2020. The 2nd Respondent contended that the Claimant's claim was statute barred under Section 90 of the Employment Act. Both parties filed written submissions and relied on the classic definition of a preliminary objection in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors, reinforced by Oraro v Mbaja, to the effect that a preliminary objection must raise a pure point of law on the assumption that the facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained. The court observed that the effective date of the Claimant's separation from employment was a contested issue of fact: the Claimant maintained he remained in employment until 16th April 2017 when his terminal leave ended, while the Respondents asserted that employment terminated on 28th February 2017. Because the limitation question under Section 90 turned on that contested effective date, the court held that it could not be resolved as a preliminary point without taking evidence. The Preliminary Objection was accordingly overruled with costs in the cause, leaving the substantive claim to proceed to full hearing.

Key legal issues

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01

Whether the Preliminary Objection based on Section 90 of the Employment Act was a true point of law

Holding

No - the objection hinged on the effective date of separation, a contested issue of fact, and was therefore not a proper preliminary objection

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must be a pure point of law argued on the assumption that the facts pleaded by the other side are correct. Here the Claimant asserted he remained in employment until 16th April 2017 while the Respondents maintained termination occurred on 28th February 2017. Since limitation under Section 90 turns on that effective date, evidence would be required, and the objection could not dispose of the suit as a preliminary point.

p. 2

Legal principles established

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  • A preliminary objection cannot be sustained where the point raised depends on contested facts requiring evidence

Court orders

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  1. 1.The Preliminary Objection is overruled with costs in the cause

Authorities

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Legislation

  • Employment ActSection 90

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors
    (1969) EA, 696
  • Oraro v Mbaja
    [2005] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Fazal v Fidelity Commercial Bank Limited & another (Cause 220 of 2020) [2024] KEELRC 22 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/22/eng@2024-01-25

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