Mbaja v County Government of Migori & another (Cause E041 of 2023) [2025] KEELRC 1194 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the limitation objection under Section 90 of the Employment Act was a competent preliminary objection
It was not competent, because the respondent's case rested on contested factual assertions about fixed-term contracts that expired in 2013, 2014 and 2020, which can only be determined after hearing both sides
The court applied Mukisa Biscuit and the Supreme Court's Aviation and Allied Workers Union test that a preliminary objection must be a pure point of law with no contest as to facts. The respondent's assertion that the claimants served under fixed-term contracts that expired without renewal was an evidential matter. The claimants had also not revealed all facts they intended to rely on, implying a contestation of facts that precludes determination at a preliminary stage.
Whether the exhaustion ground under Section 87(1) of the Employment Act was argued
The ground was not argued and was effectively abandoned by the respondent
The court noted the respondents did not submit on the exhaustion requirement under Section 87(1) of the Employment Act and could not determine an unargued ground. The objection therefore fell to be determined solely on the limitation ground, which failed as a factual contest.
Whether striking out the suit was an appropriate remedy
No, striking out is draconian and should not be resorted to otherwise than in plain instances; the claim must proceed to trial
Relying on Yaya Towers and related authorities, the court held that a claimant is entitled to pursue a claim however implausible unless the defendant demonstrates shortly and conclusively that the claim is bound to fail. The respondent had not done so because the limitation question turned on disputed facts.
Legal principles established
#- A preliminary objection may only be raised on a pure question of law where there is no proper contest as to the facts
- A plaintiff is entitled to pursue a claim however implausible unless the defendant can demonstrate shortly and conclusively that it is bound to fail
- Striking out a pleading or suit is a draconian step to be reserved for plain instances
Court orders
#- 1.The respondent's Notice of Preliminary Objection dated 10th July 2023 is dismissed
- 2.No orders as to costs
- 3.The matter to be fixed for hearing on a priority basis
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007; delivery of judgment guided by Article 159(2)(d) and Article 48 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaja v County Government of Migori & another (Cause E041 of 2023) [2025] KEELRC 1194 (KLR)", Case Analysis (2025). Cause No E041 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1194/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.