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ELRCDismissedCause No. E1135 of 2025· RULING IN ELRC CAUSE NO. E1135 OF 2025

Anne Njoki Wachira v Kenya County Government Workers Union

Employment and Labour Relations Court of Kenya at Nairobi
24 September 2026
OMOnesmus Makau
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer's promise to pay retirement dues in instalments keeps the employee's claim alive, so the case proceeds to trial.

What this practically means

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Executive summary

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The Claimant, a former Stenographer of the Respondent union employed from 1979 until retirement in 2018, claimed outstanding gratuity of Kshs.7,239,217.80, alleging the Respondent agreed to pay her terminal benefits through a lump sum and monthly instalments but defaulted after the last instalment on 6th May 2021, despite later promises and NEC approval between 2022 and 2025. The Respondent filed a preliminary objection dated 24th February 2026 contending the suit was statutorily time-barred under section 89 of the Employment Act, having been filed more than three years after the last payment or the November 2021 refund demand, or more than 12 months after the 2018 retirement if a continuing breach, thereby ousting the Court's jurisdiction. The Claimant countered that the objection did not raise pure points of law since the date the cause of action arose was disputed, and that the instalment undertaking extended the claim's life. The court, Makau J, first held the objection met the Mukisa Biscuits threshold as limitation and jurisdiction are pure points of law. On the merits, however, the court found the case distinguishable from the cited authorities because of the agreement to pay terminal dues by instalments until payment in full, which extended the claim's life to about May 2025; default from June 2021 was a continuing injury under section 89, and the suit filed on 19th November 2025 was within 12 months. The preliminary objection was overruled, with the Respondent left free to prosecute its limitation defence at trial. Costs were awarded in the cause.

Key legal issues

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01

Whether the preliminary objection raised pure points of law

Holding

It did - limitation and jurisdiction are pure points of law manifesting on the pleadings

Reasoning

The court applied the Mukisa Biscuits test and its approval by the Supreme Court in Joho v Shahbal. The grounds pleaded (statutory time-bar under section 89 of the Employment Act and consequent lack of jurisdiction) arise by clear implication from the pleadings and need no further evidence, so the objection met the legal threshold.

p. 7
02

Whether the suit was statute-barred under section 89 of the Employment Act

Holding

Not time-barred; the instalment agreement made the default a continuing injury, and the suit was filed within 12 months of May 2025

Reasoning

The Respondent's undertaking to pay Kshs.8,589,217 by instalments of Kshs.100,000 until payment in full was undisputed and would take over six years, extending the claim to about May 2025. Default from June 2021 therefore constituted a continuing injury under section 89, and the suit filed on 19th November 2025 fell within 12 months of the last due instalment.

p. 10

Legal principles established

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  • An agreement to pay terminal benefits by instalments until payment in full extends the life of the claim; default on instalments constitutes a continuing injury under section 89 of the Employment Act
  • A proper preliminary objection raises pure points of law requiring no further evidence

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 24th February 2026 is overruled
  2. 2.The Respondent is at liberty to prosecute its defence of limitation for consideration on merits
  3. 3.Costs in the cause
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (suit based on contract of service and gratuity)

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, "Anne Njoki Wachira v Kenya County Government Workers Union", Case Analysis (2026). Cause No. E1135 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2510/eng@2026-09-24

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