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ELRCStruck OutNot stated in the judgment· [2025] KEELRC 319 (KLR)

Onziga v Mara Leisure Camp (Employment and Labour Relations Cause E028 of 2024) [2025] KEELRC 319 (KLR)

Employment and Labour Relations Court
12 February 2025
2,227 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court in Nakuru struck out a claim for unpaid allowances because it was filed more than three years after the entitlement arose, as Kenyan employment law requires.

What this practically means

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Executive summary

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The Respondent filed a notice of preliminary objection dated 13th June 2024 against the Claimant's memorandum of claim dated 6th May 2024, contending that the suit seeking unpaid allowances from 2016 to 2023 totalling Kshs.1,253,403.17 was statute-barred under section 89 of the Employment Act and that the court therefore lacked jurisdiction. The Respondent relied on the Mukisa Biscuit test for preliminary objections and authorities on jurisdiction and limitation, seeking striking out of the suit with costs. The Claimant opposed, arguing that section 89 concerns contracts made abroad, that jurisdiction under section 12 of the Employment and Labour Relations Court Act was properly invoked, and that the objection raised factual matters for trial. The court restated the Mukisa Biscuit principles, noted the renumbering of the Employment Act in the 24th Annual Supplement confirming that section 89 deals with limitation, and applied the three-year limitation period. It found that the claim arose from contract terms from the claimant's October 2016 appointment, not from termination; that no demand for allowances was made until 2023 when the claimant's term ended; and that the suit filed on 6th May 2024 was outside the limitation period. The preliminary objection was allowed and the claimant's suit fails, with each party to bear its own costs of the application.

Key legal issues

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01

Whether the suit is statute-barred under section 89 of the Employment Act

Holding

The preliminary objection was allowed because the claim for unpaid allowances from October 2016 was filed on 6th May 2024, beyond the three-year limitation period

Reasoning

The court noted the claim was not founded on termination but on contract terms from 2016. There was no evidence the claimant demanded his allowances from when he got his contract in 2016; he only demanded them long after his term ended. The claim therefore accrued in 2016 and, filed in 2024, fell outside the three-year window in section 89.

p. 5
02

Whether the preliminary objection met the Mukisa Biscuit test of a pure point of law

Holding

The limitation objection raised a pure point of law capable of disposing of the suit, satisfying the test

Reasoning

Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors, the court applied the test that a preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct. A plea of limitation is expressly given as an example of such an objection and, if successful, disposes of the suit.

p. 1

Legal principles established

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  • For a preliminary objection to succeed it must raise a pure point of law, be argued on the assumption that all facts pleaded by the other side are correct, and must not require ascertainment of facts or exercise of judicial discretion
  • Section 89 of the Employment Act bars civil actions based on the Act or a contract of service unless commenced within three years of the act, neglect or default, or twelve months after cessation of continuing injury
  • A suit filed outside the limitation period prescribed by section 89 of the Employment Act is statute-barred and defeats the claim

Court orders

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  1. 1.The preliminary objection raised by the Respondent is merited and is therefore allowed
  2. 2.Each party to meet the costs of the application

Authorities

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Legislation

  • Employment ActSection 89
  • Limitation of Actions Act (Cap. 22)Section 4(1)
  • Employment and Labour Relations Court ActSection 12; Section 12(3)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (13)

  • Joseph V Automobile Association of Kenya and 4 others
    [2024] KEELRC 1691 (KLR)
  • Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors
    (1969) EA 696
  • MWK V PKI
    (2021) eKLR
  • Owners of the Motor Vessel "Lilian S" V Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Gathoni V Kenya Creamies Ltd
    [1982] eKLR
  • Mutuku V Multichoice Kenya Limited & Another
    [2024] KEELRC 1028 (KLR)
  • International Centre of Insect Physiology and Ecology (ICIPE) V Nancy Mcnally
    (2018) eKLR
  • United States International University (USIU) vs Attorney General
    (2012) eKLR
  • Daniel N. Mugendi vs University & 3 others
    (2013) eKLR
  • Nick Githinji Ndichu V Clerk Kiambu Assembly and another
    (2014) eKLR
  • Attorney General & Ministry of State for Immigration & Registrar of Persons V Andrew Maina Githinji & Zachary Mugo Kamunjiga
    [2016] KECA 817 (KLR)
  • Benjamin Wachira Ndiithi vs. Public Service Commission & Another
    [2014] eKLR
  • Hilarion Mwabolo –vs- Kenya Commercial Bank
    [2013] eKLR
Jurisdiction invoked
Sections 12 and 12(3) of the Employment and Labour Relations Court Act; Article 159(2)(d) and Article 48 of the Constitution (on virtual delivery)

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, "Onziga v Mara Leisure Camp (Employment and Labour Relations Cause E028 of 2024) [2025] KEELRC 319 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/319/eng@2025-02-12

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