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ELRCPartially AllowedNot stated in the excerpt· [2025] KEELRC 2195 (KLR)

Ndiga v Aquavita Limited (Cause E689 of 2024) [2025] KEELRC 2195 (KLR)

Employment and Labour Relations Court
24 July 2025
808 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 ruled that leave pay, house allowance and commission claims must be filed within twelve months or they are permanently time-barred.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Linnet Ndolo J) determines a Notice of Preliminary Objection dated 10th March 2025 raised by the Respondent in a constructive dismissal suit filed by the Claimant on 28th August 2024. The Claimant sought declarations of constructive dismissal and invalidity of altered terms of employment, unpaid leave (Kshs. 512,159), house allowance (Kshs. 816,458), sales commission (Kshs. 104,636), damages, a certificate of service, costs and interest. The Respondent objected that the leave, house allowance and commission claims are time barred under Section 89 of the Employment Act, which imposes a twelve-month limitation for continuing injuries. Both parties relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd on the nature of preliminary objections; the Claimant also cited Oraro v Mbaja on objections entangled with facts, while the Respondent cited several decisions of the ELRC holding that service claims of this nature are continuing wrongs. The court adopted the Court of Appeal's exposition in The German School Society v Ohany, quoting the Supreme Court of India in Balakrishna S.P. Waghmare on continuing wrongs. Finding no dispute that the claims accrued on the date of the Claimant's resignation and that the suit was filed more than twelve months later, the court held the three monetary claims statute barred, struck them out with costs in the cause, and left the constructive dismissal claims to proceed.

Key legal issues

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01

Limitation under Section 89 of the Employment Act - continuing wrong

Holding

The claims for leave pay, house allowance and sales commission are in the nature of continuing injuries and accrued on the effective date of resignation; filed more than twelve months later, they are statute barred.

Reasoning

The court adopted the Court of Appeal's distinction between a continuing wrong (a single wrongful act causing continuing injury) and recurring/successive wrongs, per the German School Society case. It found no dispute on the resignation date and no argument that any other date was the accrual date. Service claims such as leave, house allowance and commissions are treated as continuing wrongs, so the twelve-month limitation applied and the claims were filed out of time.

p. 2
02

Sustainability of the preliminary objection

Holding

The objection was sustained as a pure point of law since the accrual date was not in contest.

Reasoning

Relying on Mukisa Biscuit, a preliminary objection must raise a pure point of law on the assumption that pleaded facts are not contested. The Claimant cited Oraro v Mbaja for the proposition that issues entangled with contested facts cannot sustain an objection, but here the parties agreed the resignation date and accrual date, leaving a pure question of law on limitation, which the court answered in the Respondent's favour.

p. 2

Legal principles established

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  • Claims for leave pay, house allowance and commissions in service disputes are continuing wrongs under the latter part of Section 89 of the Employment Act and must be filed within twelve months of accrual
  • Once claims are statute barred, the Court has no jurisdiction to entertain them

Court orders

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  1. 1.The claims for leave pay, house allowance and sales commissions are struck out
  2. 2.Costs in the cause
  3. 3.Orders accordingly

Authorities

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Legislation

  • Employment ActSection 89

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • The German School Society & another v Ohany & another
    [2023] KECA 894 (KLR)
  • Balakrishna S.P. Waghmare v Shree Dhyaneshwar Maharaj Sansthan
    AIR 1959 SC 798
  • Oraro v Mbaja
    [2005] KEHC 3182 (KLR)
  • Chimera Chimoyo Alfan v Steel Makers Limited
    [2021] KEELRC 1018 (KLR)
  • Magdalene Kiboi & 17 others v Engen Kenya Limited
    [2020] KEELRC 1060 (KLR)
  • Peter Mwangi Gitonga v Desert Oasis Residents Empowerment Program (Derep)
    [2017] eKLR
Jurisdiction invoked
Employment Act, Section 89 (limitation of employment claims)

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, "Ndiga v Aquavita Limited (Cause E689 of 2024) [2025] KEELRC 2195 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2195/eng@2025-07-24

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