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ELRCStruck OutNot stated in the judgment (Preliminary Objection dated 27 March 2025)· [2025] KEELRC 2675 (KLR)

Mbthi v Pride Inn Hotels & Investment Limited & another (Cause E028 of 2025) [2025] KEELRC 2675 (KLR)

Employment and Labour Relations Court
2 October 2025
MMM. Mbarũ
1,007 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment claim filed over three years after termination was struck out because the Employment Act's three-year time limit cannot be extended.

What this practically means

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Executive summary

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The respondents, Pride Inn Hotels & Investment Limited and Pride Inn Azure Limited, filed a notice of preliminary objection dated 27 March 2025 seeking dismissal of the claimant's suit on the grounds that it was time-barred and fatally defective. The claimant alleged he was employed on 13 March 2017 as a night manager earning KSh. 82,000 per month, received a retirement notice on 30 September 2020, and after unsuccessful demands and negotiations sought reinstatement or terminal benefits, contending his termination was unlawful and unfair. The respondents argued that under section 89 and section 90 of the Employment Act, a claim for unfair termination must be filed within three years, and the claim filed on 18 March 2025 was out of time, relying on John Kiiri Njiiri v University of Nairobi. The court applied the Mukisa Biscuits test, holding that limitation is a pure point of law properly raised by preliminary objection. Taking the claimant's own pleaded facts, the cause of action accrued on 30 September 2020, giving three years to file. Relying on Beatrice Kahai Adagala v Postal Corporation of Kenya, the court held that section 90 is in mandatory terms and that the court has neither statutory jurisdiction nor discretion to extend time in contract-of-service claims. The claim filed on 18 March 2025 was therefore out of time, depriving the court of jurisdiction. The objection was upheld, the suit struck out, with costs to the respondents. Judgment delivered at Mombasa on 2 October 2025 by M. Mbarũ, Judge.

Key legal issues

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01

Whether the claim is time-barred under section 90 of the Employment Act

Holding

Yes; the cause of action accrued on 30 September 2020 and the claim filed on 18 March 2025 was out of the three-year limitation period, leaving the court without jurisdiction

Reasoning

The claimant pleaded that his employment ended upon receipt of the retirement notice on 30 September 2020. Section 90 of the Employment Act requires such claims to be filed within three years, and the provision is mandatory - the court has no discretion to extend time for contract-of-service claims. Filing on 18 March 2025, well beyond three years, stripped the court of jurisdiction, so the suit had to be struck out.

p. 3
02

Whether the respondents' preliminary objection meets the Mukisa Biscuits threshold

Holding

Yes; limitation is a pure point of law that may dispose of the suit without ascertaining facts

Reasoning

The court applied the Mukisa Biscuits test, noting that a plea of limitation is a classic preliminary objection since it raises a point of law on assumed facts. The dates relied on were drawn from the claimant's own pleadings, so no disputed facts needed ascertainment and the objection could properly be determined at any stage.

p. 2

Legal principles established

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  • The court lacks statutory jurisdiction or discretion to extend time for employment claims; a claim based on a contract of service must be filed within three years under section 90 of the Employment Act
  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct

Court orders

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  1. 1.The preliminary objections dated 27 March 2025 are upheld as having merit
  2. 2.The suit is struck out
  3. 3.Costs to the respondents

Authorities

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Legislation

  • Employment Actsection 89
  • Employment Act, 2007section 90
  • Limitation of Actions Act (Cap. 22)section 4(1); sections 27 and 28 (as referenced in the quoted Court of Appeal passage)

Cases cited (6)

  • John Kiiri Njiiri v University of Nairobi
    [2021] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors
    [1969] EA
  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others
    Petition No. 10 of 2013, [2014] eKLR
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    [2015] eKLR
  • Divecon Limited -vs- Samani
    [1995-1998] 1 EA P.48
  • Josephat Ndirangu - vs – Henkel Chemicals (EA) Limited
    [2013] eKLR
Jurisdiction invoked
Section 90 of the Employment Act, 2007 (limitation in employment claims); Employment and Labour Relations Court jurisdiction

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, "Mbthi v Pride Inn Hotels & Investment Limited & another (Cause E028 of 2025) [2025] KEELRC 2675 (KLR)", Case Analysis (2025). Not stated in the judgment (Preliminary Objection dated 27 March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2675/eng@2025-10-02

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