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ELRCStruck OutNot stated in judgment· [2024] KEELRC 2482 (KLR)

Ojiambo v Kibos Sugar & Allied Industries Ltd (Cause E027 of 2024) [2024] KEELRC 2482 (KLR)

Employment and Labour Relations Court
11 October 2024
CBCHRISTINE N. BAARI
1,287 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Employment and Labour Relations Court at Nairobi determines a Notice of Preliminary Objection dated 14th May, 2024, in which the Respondent contended that the Claimant's suit was statute barred under Section 90 of the Employment Act, 2007, the last working day being 23rd February, 2021 and the claim filed in April 2024. The Claimant countered that he signed a P9 form and discharge voucher on 10th May, 2021, which signalled separation, and that the date of separation was a matter of evidence unsuitable for determination by preliminary objection. The court applied the Mukisa Biscuit test and the Supreme Court's decision in IEBC v Jane Cheperenger, holding that a plea of limitation is a pure point of law properly raised by preliminary objection. On the accrual of the cause of action, the court relied on Hilarion Mwabolo v Kenya Commercial Bank and the Court of Appeal's decision in David Ngugi Waweru, holding that time runs from the date stated in the termination letter, which was 2nd March, 2021, and not from the date of the discharge voucher or internal processes. The claim, dated 3rd April, 2024 and filed on 8th April, 2024, was therefore out of time. The preliminary objection succeeded, the Memorandum of Claim was struck out, and costs were awarded to the Respondent. The ruling was delivered on 11th October, 2024 by Christine N. Baari, Judge.

Key legal issues

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01

Whether the Claimant's suit is time barred under Section 90 of the Employment Act, 2007

Holding

The suit was statute barred; the cause of action accrued on the termination date of 2nd March, 2021, and the claim filed on 8th April, 2024 exceeded the three-year limitation period

Reasoning

Section 90 of the Employment Act requires employment claims to be instituted within three years of the act complained of. Relying on Hilarion Mwabolo and David Ngugi Waweru, the court held that time runs from the date in the termination letter, not from the date of the discharge voucher or conclusion of internal processes. The claimant was terminated on 2nd March, 2021, so the claim ought to have been filed by 2nd March, 2024; a claim filed on 8th April, 2024 was out of time.

p. 3
02

Whether a plea of limitation is a proper preliminary objection

Holding

Yes; a plea of limitation premised on Section 90 is a pure point of law which, if proven, can dispose of the suit

Reasoning

Guided by Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and the Supreme Court's decision in IEBC v Jane Cheperenger, the court found that a limitation objection is a point of law argued on the assumption that pleaded facts are correct, and requires no ascertainment of facts or exercise of discretion.

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Legal principles established

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  • The cause of action in employment claims accrues on the date of termination/dismissal as stated in the termination letter, not on the date of separation formalities or conclusion of internal processes

Court orders

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  1. 1.The Respondent's preliminary objection succeeds
  2. 2.The Claimant's Memorandum of Claim dated 3rd April, 2024 is struck out
  3. 3.Costs of the objection to the Respondent

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSection 90 (Employment Act, 2007)
  • Limitation of Actions ActSection 4(1)

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    Civil Application No 36 of 2014 [2015] eKLR
  • David Ngugi Waweru v Attorney General & another
    (2017) eKLR
  • Attorney General of Tanzania v African Network for Animal Welfare (ANAW)
    EACT Aegeal No 3 of 2011
  • Hilarion Mwabolo v Kenya Commercial Bank
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 90 limitation bar invoked)

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, "Ojiambo v Kibos Sugar & Allied Industries Ltd (Cause E027 of 2024) [2024] KEELRC 2482 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2482/eng@2024-10-11

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