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ELRCDismissedCause No E931 of 2023· [2024] KEELRC 2611 (KLR)

Kisa & another v National Police Service Commission & 3 others (Cause E931 of 2023) [2024] KEELRC 2611 (KLR)

Employment and Labour Relations Court
25 October 2024
2,075 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 police dismissal claims, ruling that disputed facts about when and how dismissals were communicated must be resolved at trial.

What this practically means

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Executive summary

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This ruling by Stella Rutto, Judge of the Employment and Labour Relations Court at Nairobi, determines a Notice of Preliminary Objection dated July 1, 2024 raised by the 2nd, 3rd and 4th Respondents, supported by the 1st Respondent. The Respondents argued that the Claimants' claims challenging their dismissal from the police service were time-barred under Section 3(2) of the Public Authorities Limitation Act: the 1st Claimant allegedly dismissed on April 27, 2020 filed in November 2023, while the 2nd Claimant allegedly dismissed on June 14, 2012 filed some eleven years later. It was contended the Court therefore lacked jurisdiction and the Claim should be struck out. The Claimants opposed via Grounds of Opposition, contending the objection failed the Mukisa Biscuits test and that they were never dismissed or communicated with, so time had not started running. The court restated the classic definition of a preliminary objection and the requirement that it raise a pure point of law on assumed pleaded facts. Holding that whether, when and how the Claimants' dismissals were effected and communicated were hotly contested factual issues determinable only at trial, the court found the objection was marred by facts and did not meet the threshold. The Preliminary Objection was overruled with costs in the cause.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuits threshold of a pure point of law

Holding

It did not; the objection depended on contested facts about the dismissal and its communication, so it failed.

Reasoning

The court restated the Mukisa Biscuits definition and Nebbold JA's demurrer test. Applying it, the Claimants pleaded they were never dismissed or communicated with, while Respondents asserted dismissals in 2012 and 2020. Whether and when dismissal occurred and how it was communicated can only be ascertained from evidence at trial, so the objection is marred by issues of fact and does not raise a pure point of law.

p. 4
02

Whether the suit is time-barred under Section 3(2) of the Public Authorities Limitation Act

Holding

The limitation question could not be resolved preliminarily because commencement of time depends on disputed facts about dismissal and communication.

Reasoning

Respondents argued the claims, filed in November 2023, were three years seven months and eleven years respectively after dismissal, beyond the three-year period. Claimants countered that time runs only from communication of dismissal, which they deny receiving. Since communication is a hotly contested factual issue for trial, the limitation plea could not sustain a proper preliminary objection.

p. 3

Legal principles established

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  • A preliminary objection on limitation fails where the date of dismissal and its communication are disputed facts ascertainable only at trial
  • Requirements of a valid preliminary objection

Court orders

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  1. 1.The Preliminary Objection dated July 1, 2024 raised by the 2nd, 3rd and 4th Respondents is overruled
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Public Authorities Limitation ActSection 3(2)
  • Penal CodeSections 203 and 204
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Police Force Standing Ordersnot specified (now repealed)

Cases cited (8)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA 696
  • Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • Daniel Kago Gachanja vs Inspector General & 2 others
    (2020) eKLR
  • Bosire Ongero vs Royal Media Services
    (2015) eKLR
  • Republic vs Eldoret Water & Sanitation Company Limited Ex Parte Booker Onyango
    (2007) eKLR
  • Ezekiel Nyangowa Okemwa vs Kenya Marine & Fisheries Research Institute
    (2016) eKLR
  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank, Kisumu
    HCCC No.53 of 2004
  • J N & 5 others vs Board of Management, St. G School Nairobi & another
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under its constituting statute (not expressly cited); judgment invokes Article 159(2)(d) and Article 48 of the Constitution in the delivery order

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, "Kisa & another v National Police Service Commission & 3 others (Cause E931 of 2023) [2024] KEELRC 2611 (KLR)", Case Analysis (2024). Cause No E931 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2611/eng@2024-10-25

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