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ELRCStruck OutMemorandum of Claim dated 2nd June, 2025· [2025] KEELRC 2649 (KLR)

Amollo v Mitsumi Distribution FZ Company & 40 others (Cause E041 of 2025) [2025] KEELRC 2649 (KLR)

Employment and Labour Relations Court
30 September 2025
2,515 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court struck out a worker's claim filed just four years after dismissal, confirming the three-year filing deadline cannot be extended by contract.

What this practically means

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Executive summary

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The claimant sued 15 respondents by a Memorandum of Claim dated 2nd June, 2025 alleging 31 breaches, including unlawful termination of his employment with the 2nd respondent on 9th June, 2021 and forced resignation as a director of the 6th respondent. He sought declarations, compensation for wrongful dismissal and unfair labour practices, and substitution of his contractual terms with the Employment Act. The respondents filed a statement of response seeking striking out of the suit as frivolous, followed by a Notice of Preliminary Objection on 1st July, 2025 arguing that the court lacked jurisdiction under Section 89 of the Employment Act because the suit, filed on 9th June, 2025, was beyond the three-year limitation period running from the admitted 9th June, 2021 termination. The claimant argued that a one-year restraining clause in his employment contract extended the limitation period to 9th June, 2025, and alternatively to September 2026 given his directorship, and that constitutional provisions prevailed over the Employment Act. The court, per Dr. Jacob Gakeri J, applied the Mukisa Biscuit threshold, held the objection was a proper preliminary objection, confirmed the ELRC's jurisdiction to enforce constitutional rights in a claim, but held that limitation under Section 89 is statutory and cannot be extended by contract or consent. Finding no allegation of continuing injury and no proof of an employment relationship with the 6th respondent, the court held the suit statute barred, struck out the claim dated 2nd June, 2025, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the Notice of Preliminary Objection was a proper preliminary objection

Holding

It met the threshold in Mukisa Biscuit as a pure point of law on jurisdiction and limitation

Reasoning

Applying Law JA and Sir Charles Newbold P's articulation, a preliminary objection raises a point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit without ascertaining facts. Since the respondents challenged jurisdiction purely on limitation under Section 89 of the Employment Act, the objection qualified and was properly before the court for determination at the threshold.

p. 3
02

Whether the ELRC has jurisdiction to enforce constitutional rights in a claim

Holding

Yes, but only over constitutional issues arising in the context of employment and labour relations; it did not save this suit

Reasoning

The court accepted claimant's submission, citing Okiya Omtata, USIU, Mugendi and the Kenya Tea Growers Supreme Court decision, that the ELRC can enforce constitutional rights and freedoms through a claim. However that jurisdiction does not displace statutory limitation under Section 89 of the Employment Act, and the claimant had not pleaded a continuing injury to bring himself within the statutory exception.

p. 4
03

Whether the contract's restraining clause or the claimant's directorship extended the limitation period

Holding

No; statutory limitation cannot be altered by contract, and no evidence showed an employment relationship with the 6th respondent

Reasoning

The court found the claimant's argument that clause 9 of the employment contract extended the limitation period legally and factually baseless. Parties cannot contract out of or extend statutory limitation, nor confer jurisdiction by consent. Further, the claimant did not avail a contract of service with the 6th respondent to show he was an employee whose resignation extended the period; directors typically serve without contracts of service.

p. 5
04

Whether a constitutional petition would have ameliorated the claimant's case

Holding

The court declined to decide, noting only that a petition alleging real violations would have been examined for evasion of limitation

Reasoning

The court observed that had the claimant filed a petition grounding his case on constitutional provisions with precision under Anarita Karimi Njeru, the court would have determined whether violations were real or whether the petition was a device to evade limitation, as often happens where the three-year period has lapsed. Since no petition was filed, the court went no further.

p. 4
05

Whether the suit was filed within the limitation period

Holding

No; the suit filed on 9th June, 2025 over a 9th June, 2021 termination was statute barred

Reasoning

Section 89 requires employment-based civil actions within three years of the act complained of, with a 12-month window only for continuing injury after cessation. The claimant pleaded and the respondents admitted termination on 9th June, 2021. The claimant did not allege a continuing injury or that the suit was filed within 12 months of cessation, so the claim filed in June 2025 was out of time.

p. 4

Legal principles established

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  • A preliminary objection that challenges jurisdiction on account of limitation of time is a pure point of law and should be disposed of at the earliest opportunity
  • Limitation of time in employment disputes is governed by Section 89 of the Employment Act and cannot be altered by agreement between the parties
  • Parties cannot confer jurisdiction on a court or extend the limitation period by consent
  • Where a suit is statute barred, the court has no jurisdiction and must down its tools

Court orders

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  1. 1.The claim dated 2nd June, 2025 is struck out
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 25
  • Constitution of KenyaArticle 22 and 22(2)
  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticle 2
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Employment ActSection 89
  • Limitation of Actions ActSection 4(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 10(3)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (11)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Owners of Motor Vessel "Lilian S" v Caltex Oil Kenya Ltd
    [1989] eKLR
  • Attorney General & 2 Others v Okiya Omtata & 14 others
    [2020] eKLR
  • United States International University (USIU) v The Attorney General & Others
    [2012] eKLR
  • Daniel N. Mugendi v Kenyatta University & 3 Others
    [2013] eKLR
  • Kenya Tea Growers Association v 812 Others v National Social Security Fund Board of Trustees & 13 Others
    Petition E004 of 2002 of 2023 (Consolidated) [2024] KESC 3 KLR
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Gabriel Mutava & 2 Others v Managing Director Kenya Ports Authority & Another
    [2016] eKLR
  • Alphonce Mwangemi Munga & Others v African Safari Club
    [2008] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank & others
    [2012] eKLR
  • Phoenix of E. A. Assurance co. Ltd v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution (jurisdiction of the Employment and Labour Relations Court); limitation challenged under Section 89 of the Employment Act

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, "Amollo v Mitsumi Distribution FZ Company & 40 others (Cause E041 of 2025) [2025] KEELRC 2649 (KLR)", Case Analysis (2025). Memorandum of Claim dated 2nd June, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2649/eng@2025-09-30

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