Gichuhi v Shamiah & another (Cause E009 of 2024) [2024] KEELRC 1919 (KLR)
The bottom line
#Kenya's Employment Court confirmed you have three years from your last day of work to sue for unpaid dues, so termination claims filed within that window are not time barred.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of preliminary objection raises a pure point of law
It does: the objection is founded on limitation under Section 90 of the Employment Act, which implicates jurisdiction and satisfies the Mukisa Biscuits threshold.
The Claimant argued the objection was fact-based. The court held that a limitation objection is a point of law capable of disposing of the suit without ascertaining facts, and that limitation implicates jurisdiction, hence the objection met the threshold and had to be determined at the threshold stage.
When the cause of action accrued and whether the suit is time barred under Section 90 of the Employment Act
The cause of action accrued on the Claimant's last day of employment, 31st October, 2022; the suit filed on 9th January, 2024 was within the three-year period and is not statute barred.
Relying on German School Society v Helga Ohany and Charles George Ogola v Mansion Hart Kenya Ltd, the court distinguished continuing injuries (12-month bar) from underpayments/terminal dues accruing at termination (three-year bar). The termination letter was dated 29th September, 2022 and employment ended 31st October, 2022; the three-year period had not lapsed.
Legal principles established
#- A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained.
- An objection based on limitation of time implicates the court's jurisdiction and meets the Mukisa Biscuits threshold of a preliminary objection.
- For employment claims under Section 90 of the Employment Act, the cause of action in a termination-based claim accrues on the employee's last day of employment, and a suit filed within three years of that date is not statute barred.
Court orders
#- 1.The 1st Respondent's Notice of Preliminary Objection dated 29th January, 2024 is dismissed.
- 2.Parties to bear their own costs.
- Jurisdiction invoked
- Articles 159(2)(d) and 48 of the Constitution; Section 1B of the Civil Procedure Act; Section 90 of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Gichuhi v Shamiah & another (Cause E009 of 2024) [2024] KEELRC 1919 (KLR)", Case Analysis (2024). Cause No E009 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1919/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.