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IndustrialStruck OutNot stated in the judgment as supplied· [2014] KEIC 129 (KLR)

Murai v Rwathia Distributors Limited (Cause 269 of 2013) [2014] KEIC 129 (KLR)

Employment and Labour Relations Court
17 March 2014
1,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first-instance ruling of the Employment and Labour Relations Court at Nairobi on a Preliminary Objection dated 8th January 2014 raised by the Respondent, an employer sued by a former employee whose services were said to have been terminated on 18th December 2005 and who filed a Memorandum of Claim on 27th February 2013. Counsel for the Respondent, Miss Ndirangu, argued that under Section 90 of the Employment Act no civil action founded on contract may be instituted more than three years after the cause of action accrued, relying on Maria Machocho v. Total (K) Ltd, and urged that the court lacked jurisdiction to entertain the claim. The court, per Nzioki Wa Makau J, adopted the Mukisa Biscuits definition of a preliminary objection as a pure point of law and found the objection properly before it, since it sought to determine whether a cause of action existed in limine without any exercise of judicial discretion. The critical holding was that when the cause of action arose in 2005, the governing statute was the repealed Employment Act Cap 226, which contained no limitation provision; the fallback was therefore the six-year period for actions founded on contract in Section 4(1) of the Limitation of Actions Act. Limitation accordingly expired in 2011, not 2008 as the Respondent had submitted, but the suit filed in 2013 was still out of time, and the law allowed no extension of time. The preliminary objection was allowed with costs, disposing of the suit.

Key legal issues

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01

Whether the objection was a proper preliminary objection

Holding

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.

Reasoning

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.

p. 2
02

Which limitation regime applies to a 2005 termination

Holding

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.

Reasoning

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.

p. 2
03

Whether the suit is time barred

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Respondent's Preliminary Objection dated 8th January 2014 succeeds and is allowed.
  2. 2.The suit is dismissed as time barred (the preliminary objection, if it succeeds, disposes of the suit).
  3. 3.Costs of the preliminary objection are awarded to the Respondent.

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act (repealed), Cap 226Not specified (no limitation provision)
  • Limitation of Actions Act, Cap 22, Laws of KenyaSection 4(1)

Cases cited (3)

  • Maria Machocho v. Total (K) Ltd
    [2013] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd
    [1969] E.A. 696
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
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

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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, "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.