Gicheha & 294 others v Uniliver K. Ltd & another (Employment and Labour Relations Cause 942 of 2017) [2024] KEELRC 646 (KLR)
The bottom line
#Kenya's Employment Court dismissed an employer's attempt to throw out a redundancy claim, confirming such objections must rest purely on points of law.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was properly raised as a pure point of law
It was not, because the issue of whether service of summons was effected required ascertainment of facts through evidence
Applying Mukisa Biscuit, the court held that a preliminary objection must rest on a pure point of law assuming all pleaded facts are correct. Here the 2nd Respondent asserted service occurred five years after filing, while the Claimants asserted the 2nd Respondent refused service in 2017 and that service was technically effected. Determining whether service was proper required evidence from both sides, taking the objection outside the proper scope of a preliminary objection.
Whether the suit is time-barred under section 90 of the Employment Act
No; the cause of action accrued on 31st May 2014 and the suit was filed on 18th May 2017, within three years
The court noted paragraph 10 of the statement of claim explaining that the Claimants were declared redundant on 31st May 2014 and later sought assistance of the Labour Office and then an advocate. Since the statement of claim was filed on 18th May 2017, the claim fell within the three-year limitation period under section 90 of the Employment Act, and the 2nd Respondent failed to demonstrate otherwise.
Whether the suit should be struck out for lack of proper service on the 2nd Respondent
The court declined to determine this issue, having found the objection improperly taken
Having found that the preliminary objection was not properly taken as a pure point of law, the court considered it improper to proceed to examine the striking-out issue within the preliminary objection forum. That question, entangled with disputed facts about service, was left unresolved on this ruling.
Legal principles established
#- A preliminary objection must be confined to a pure point of law; where facts (such as whether service of summons was effected) must be ascertained, it is improperly taken
Court orders
#- 1.The 2nd Respondent's Notice of Preliminary Objection dated 5th July 2022 is dismissed
- 2.Costs of the Preliminary Objection awarded to the Claimants
- Jurisdiction invoked
- Original employment and labour relations jurisdiction under the Employment Act and the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gicheha & 294 others v Uniliver K. Ltd & another (Employment and Labour Relations Cause 942 of 2017) [2024] KEELRC 646 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/646/eng@2024-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.