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ELRCDismissedCause No 954 of 2017· [2024] KEELRC 418 (KLR)

Kahara v Presbyterian University of Kenya (Cause 954 of 2017) [2024] KEELRC 418 (KLR)

Employment and Labour Relations Court
29 February 2024
MOMaureen Onyango
1,045 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to strike out a defence that an employment claim was filed too late, confirming limitation objections must be heard fully.

What this practically means

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Executive summary

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The Claimant, Jane Wambui Kahara, moved the court by Notice of Motion dated 4th July 2022 seeking to strike out the Respondent's defence dated 5th April 2022 and to have judgment entered against the Respondent as prayed in her Amended Memorandum of Claim, together with costs and interest. The application was supported by her affidavit and opposed by a replying affidavit sworn by the Respondent's counsel, Jason Kiambi Mungania, who maintained that the defence raised triable issues, principally that the claim was time barred under section 90 of the Employment Act, 2007, the cause of action arising from work undertaken between July and December 2013. The Claimant relied on authorities on the striking out of pleadings, arguing that the defence was frivolous, vexatious and an abuse of process, and on the principle that costs follow the event. The parties disposed of the application by written submissions. The court framed a single issue: whether the defence was frivolous and whether striking it out was merited. Applying the principle from Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd that jurisdiction is everything, the court held that a defence that a claim is statute barred is a valid and substantive defence because it questions the jurisdiction of the court, and that such a plea ought to be ventilated and determined rather than struck out. Finding that the defence raised a valid jurisdictional question, the court held the application to be without merit and dismissed it with costs in the cause.

Key legal issues

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01

Whether the Respondent's defence, whose principal ground is limitation under section 90 of the Employment Act, is frivolous and suitable for striking out

Holding

The defence is not frivolous; a limitation defence is a valid and substantive defence as it questions the court's jurisdiction, and the court declined to strike it out

Reasoning

The court reasoned that the Respondent's main ground in its defence is that the claim is statute barred, the cause of action having arisen from work undertaken between July and December 2013, more than three years before filing. Relying on the principle that jurisdiction is everything, the court held that a plea of limitation is a valid and substantive defence questioning jurisdiction, which must be ventilated and determined on its merits, not disposed of by striking out. The application was therefore dismissed.

p. 2

Legal principles established

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  • A defence that a claim is statute barred is a valid and substantive defence because it questions the jurisdiction of the court, and such a defence ought to be ventilated and determined by the court rather than struck out.
  • A plea of lack of jurisdiction is a valid defence that must be determined by the court on its merits.

Court orders

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  1. 1.The Claimant's Notice of Motion dated 4th July 2022 is dismissed with costs in the cause

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Civil Procedure RulesOrder 2 Rule 15

Cases cited (8)

  • Madison Insurance Company Limited v Augustine Kamanda Gitau
    [2020] eKLR
  • D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
  • Kenya Commercial Bank v Suntra Investment Bank Limited
    [2015] eKLR
  • Margaret Njeri Mbugua v Kirk Mweya Nyaga
    [2016] eKLR
  • Mercy Nduta Mwangi T/A Mwangi Keng'ara & Company Advocates v Invesco Assurance Company Limited
    [2019] eKLR
  • Ecobank Kenya Limited v Kel Enterprises Limited & 2 Others
    [2018] eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & another
    (2016) eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd.
    [1989]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act, 2007 (not expressly invoked in the judgment)

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, "Kahara v Presbyterian University of Kenya (Cause 954 of 2017) [2024] KEELRC 418 (KLR)", Case Analysis (2024). Cause No 954 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/418/eng@2024-02-29

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