Mbatha v Ismax Security Limited (Appeal E324 of 2024) [2025] KEELRC 1827 (KLR)
The bottom line
#Kenya's Employment Court overturned a ruling that struck out a worker's unfair termination claim as time-barred, reviving six suits against the same employer.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on jurisdiction could be canvassed despite the interlocutory judgment
The trial court was right to hear the jurisdictional preliminary objection first; jurisdiction can be raised at any stage and cannot be conferred by consent or acquiescence
The court held that jurisdiction is central to judicial proceedings and a court acting without jurisdiction acts in vain. Relying on Owners of Motor Vessel 'Lillian S' and Jamal Salim, it found jurisdiction can be raised at any stage, even on appeal. The entry of interlocutory judgment and scheduling of formal proof did not bar the respondent from raising a jurisdictional objection, so the trial court rightly ordered the objection canvassed first by written submissions.
Whether the claim was time barred as a continuing injury
The claim was for unfair termination under the three-year limitation; only some prayers were continuing injury claims, so the preliminary objection did not dispose of the whole suit
The trial court found the claim time barred as a continuing injury (termination on 1st July 2022, claim filed March 2024). The appellate court, applying the German School Society v Ohany and M.R. Gupta authority on continuing wrongs, agreed the claim was one for unfair termination. Only some prayers (e.g. back pay) fell under continuing injury. The preliminary objection therefore did not raise a pure point of law capable of disposing of the entire suit and was improper under the Mukisa Biscuits threshold.
Legal principles established
#- The issue of jurisdiction can be raised at any stage of the proceedings, even after interlocutory judgment
- A preliminary objection must raise a pure point of law and cannot be raised where facts have to be ascertained
- A claim for unfair termination is subject to the three-year limitation under section 90 of the Employment Act, while continuing injury claims (such as back pay) are subject to twelve months
Court orders
#- 1.The appeal is allowed
- 2.The Ruling and Order of the Honourable C.K. Mwaniki (SRM) delivered at Ruiru on 31st October 2024 in MCELRC No. E033 of 2024 is set aside and substituted with an order dismissing the Respondent's Notice of Preliminary Objection dated 3rd August 2024
- 3.MCELRC No. E033 of 2024 and the related matters (Nos. 032, 034, E035, E036 and E037 of 2024) are remitted to the trial court and to another Magistrate for hearing and determination of the main suit on merits
- 4.Costs of the appeal to the appellant
- On appeal from
- Ruiru Magistrates' Court (Employment and Labour Relations Court at Ruiru)
- MCELRC No. E033 of 2024
- Jurisdiction invoked
- First appellate jurisdiction over a ruling of a magistrate in employment and labour relations proceedings (Employment and Labour Relations Court (Procedure) Rules, 2016 context)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbatha v Ismax Security Limited (Appeal E324 of 2024) [2025] KEELRC 1827 (KLR)", Case Analysis (2025). Not stated in judgment (appeal against Ruling in MCELRC No. E033 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1827/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.