Elpa & 212 others v Majani Mingi Group of Companies Limited; Kenya Plantation & Agricultural Workers Union & 3 others (Interested Parties) (Employment and Labour Relations Petition 18 of 2019) [2025] KEELRC 2636 (KLR)
The bottom line
#A Kenyan employment court refused to throw out a petition by 213 former workers because the employer could not prove it was filed too late or already decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is res judicata having regard to Nakuru Industrial Cause No. 76 of 2013 and No. 15 of 2020
The objection failed because the Respondent produced no documents or pleadings proving similarity between the petition and the prior suits
The court held that under sections 107, 108 and 109 of the Evidence Act, he who alleges must prove. The Respondent's assertion that the petition replicated the two prior Industrial Causes was a mere allegation unsupported by documents or pleadings enabling verification that the present petition is res judicata. Accordingly that ground of the preliminary objection could not succeed at this interlocutory stage.
Whether the petition is statute-barred under section 90 of the Employment Act
The time-bar ground failed as a preliminary objection because the exact dates of the cause of action for the 213 petitioners were not established
The court found the claim of time bar unsupported: it was not clear when the cause of action arose for each of the 213 petitioners, some of whom produced retirement letters dated between 2016 and 2019. Applying the Mukisa Biscuit principles, the objection required factual ascertainment and did not meet the threshold of a pure point of law, so the petition should proceed to hearing.
Whether the preliminary objection met the Mukisa Biscuit threshold
The tenets of a proper preliminary objection were not met
Restating the locus classicus in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court held that a preliminary objection must consist of a point of law which, if argued, may dispose of the suit, and cannot be raised where facts have to be ascertained. Both the res judicata and limitation grounds required factual inquiry, so the objection was dismissed.
Legal principles established
#- A preliminary objection must be a pure point of law on assumed facts, not requiring ascertainment of facts
- A party asserting res judicata bears the burden of proving that the matter was directly and substantially in issue in a former suit between the same parties
Court orders
#- 1.The preliminary objection dated 21st January 2025 is found unproved and dismissed
- 2.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12 (employment and constitutional claims incidental to employment); Articles 48 and 159(2)(d) of the Constitution invoked for virtual delivery
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elpa & 212 others v Majani Mingi Group of Companies Limited; Kenya Plantation & Agricultural Workers Union & 3 others (Interested Parties) (Employment and Labour Relations Petition 18 of 2019) [2025] KEELRC 2636 (KLR)", Case Analysis (2025). Nakuru Industrial Cause (petition) - Preliminary Objection dated 21st January 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2636/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.