Murai v Rwathia Distributors Limited (Cause 269 of 2013) [2014] KEIC 129 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the objection was a proper preliminary objection
Yes - it raises a pure point of law (limitation) on the assumption that all facts pleaded by the Claimant are correct and requires no exercise of judicial discretion.
The court adopted the classic definitions in Mukisa Biscuits: a preliminary objection is a point of law pleaded or arising by clear implication from the pleadings which, if argued as a preliminary point, may dispose of the suit; it cannot be raised where facts must be ascertained or discretion exercised. Here the objection seeks to determine whether a cause of action exists in limine, and no discretion is sought; success would spare the parties a lengthy trial.
Which limitation regime applies to a 2005 termination
The repealed Employment Act cap 226 contained no limitation provision, so the six-year period in Section 4(1) of the Limitation of Actions Act governs; time would expire in 2011, not 2008.
The Respondent argued the three-year bar in Section 90 of the Employment Act 2007. The court held that at the time the dispute arose (termination in December 2005), the applicable statute was the repealed Employment Act cap 226, which had no limitation provision; the fallback was Section 4(1) of the Limitation of Actions Act, giving six years for contract actions. Limitation would therefore have set in in 2011.
Whether the suit is time barred
Yes - the suit filed on 27th February 2013 was outside even the six-year period, which expired in 2011, and no extension of time is available.
Termination occurred in 2005; the six-year contractual limitation period under the Limitation of Actions Act ran out in 2011. The suit was filed in February 2013. The law provides no extension of time to save the claim, so the cause of action is extinguished and the preliminary objection must succeed.
Legal principles established
#- A limitation defence based purely on the pleadings is a proper preliminary objection raising a pure point of law.
- Where a cause of action accrued while the repealed Employment Act cap 226 (which contained no limitation provision) was in force, the applicable limitation period is the six-year period for actions founded on contract under Section 4(1) of the Limitation of Actions Act.
Court orders
#- 1.The Respondent's Preliminary Objection dated 8th January 2014 succeeds and is allowed.
- 2.The suit is dismissed as time barred (the preliminary objection, if it succeeds, disposes of the suit).
- 3.Costs of the preliminary objection are awarded to the Respondent.
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment disputes; no specific constitutional/statutory provision invoked in the judgment as supplied.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murai v Rwathia Distributors Limited (Cause 269 of 2013) [2014] KEIC 129 (KLR)", Case Analysis (2014). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/129/eng@2014-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.