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ELRCDismissedELRC Cause No. E1136 of 2025· [2026] KEELRC 2771 (KLR)

Margaret Muthoni Muiga v Kenya County Government Workers Union

Employment & Labour Relations Court
8 October 2026
HWHellen Wasilwa
2,957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a time-bar defence based on disputed promises to pay must be proven with evidence at trial, not struck out early.

What this practically means

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Executive summary

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The Respondent Union raised a preliminary objection to the Claimant's statement of claim for unpaid gratuity, arguing that the suit was statutorily time-barred under Section 89 of the Employment Act, 2007, having been filed more than three years after the alleged default, and that the court therefore lacked jurisdiction. The Respondent submitted that the cause of action arose when gratuity payments stopped on 6th May 2021 or when it disputed the gratuity by letter dated 23rd November 2021, so the three-year period expired by 23rd November 2024; alternatively, time ran from the Claimant's retirement in 2018. It relied on authorities holding that Section 89 is mandatory and incapable of enlargement, and that a promise to pay cannot override a statutory time limit. The Claimant countered that the objection was mixed up with disputed facts - whether the Respondent promised to pay her, whether it made verbal promises between 2022 and 2024, and the effect of a 2025 letter - which could only be resolved through evidence. She relied on Mogas (Section 23 of the Limitation of Actions Act) and on Nzoka v the same Respondent, where NEC-approved gratuity was held binding on the union. Justice Hellen Wasilwa held that whether there was a promise to pay, and when the promise or payment became due, are factual matters falling outside the purview of a preliminary objection, which under Mukisa Biscuit must rest on pure points of law. The preliminary objection was dismissed with costs in the cause, allowing the claim to proceed to full hearing.

Key legal issues

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Whether a limitation defence under Section 89 of the Employment Act can be determined on a preliminary objection where the date the cause of action arose depends on disputed facts

Holding

No - where there was a promise to pay and when payment became due are factual matters requiring evidence, the objection fails

Reasoning

The court found that whether the Respondent promised to pay the Claimant in 2025, and when any such promise or payment became due, are questions of fact. A preliminary objection under the Mukisa Biscuit test must rest on pure points of law on uncontested facts. Since the limitation argument depended on ascertaining facts such as the alleged promises and instalment arrangements, it could only be resolved after evidence is adduced at trial.

p. 14

Legal principles established

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  • A preliminary objection must be based on pure points of law and cannot depend on facts requiring ascertainment through evidence

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.Costs in the cause
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 89 raised as the limitation provision governing the claim)

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, "Margaret Muthoni Muiga v Kenya County Government Workers Union", Case Analysis (2026). ELRC Cause No. E1136 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2771/eng@2026-10-08

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