Bukhebi v Factory Guards Ltd (Cause E013 of 2026) [2026] KEMC 448 (KLR)
The bottom line
#Kenya's Employment Court confirmed it cannot hear employment claims filed more than three years after dismissal, and a criminal acquittal does not restart the clock.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection raises a proper preliminary point of law
Yes - a plea of limitation is a pure point of law that may properly be raised as a preliminary objection because it touches jurisdiction
Applying the Mukisa Biscuit principles, a preliminary objection must raise a pure point of law capable of disposing of the suit without investigating contested facts. Here the material dates appeared from the pleadings and undisputed documents, so the question whether a claim arising from a February 2021 termination could be commenced in January 2026 was a question of law determinable without evidence.
Whether section 89 of the Employment Act governs limitation of employment claims
Yes - under the revised Employment Act, section 89 is the limitation provision; the former section 90 was renumbered as section 89
The Claimant relied on the former numbering, where section 89 concerned contracts of service made abroad and section 90 contained the limitation rule. Under the currently revised edition, section 88 is 'Saving of contracts of service made abroad' and section 89 is 'Limitations'. The substantive limitation rule was unchanged, and even a mistaken citation of section number would not defeat a clear jurisdictional objection founded on the correct substance.
When the cause of action accrued and whether the acquittal revived it
The cause of action accrued on 15th February 2021 when the summary dismissal took effect; the acquittal of 4th October 2023 neither postponed accrual nor restarted limitation
The dismissal letter stated dismissal effective 15th February 2021, without suggesting the dismissal was provisional or conditional on the criminal trial. Criminal proceedings and the employment relationship were distinct; the pendency of the criminal case did not suspend the legal effect of the dismissal, and the Claimant need not have awaited the trial's outcome before suing.
Whether there was a continuing injury bringing the claim within the twelve-month proviso
No - termination is a discrete completed act; its continuing consequences are not a continuing injury. Even if there were one ending on acquittal, the twelve months expired on 4th October 2024, before the suit was filed
Section 89 permits suits founded on continuing injury within twelve months of cessation, but a continuing injury requires an ongoing breach of a subsisting duty. The adverse consequences of a completed act do not convert it into a continuing wrong. Even on the interpretation most favourable to the Claimant, the suit filed on 22nd January 2026 was more than a year late.
Whether the amendment of the Memorandum of Claim could save the suit
No - an amendment cannot retrospectively alter an historical event or create a fresh cause of action
The operative termination date is determined from the actual termination, not the date selected in an amended pleading. There was no fresh dismissal letter in October 2023, no continued payment or deployment after February 2021, and the October 2023 date corresponded only to the acquittal. The amendment could not revive a cause of action already statute-barred.
Legal principles established
#- A plea of limitation may properly be raised by way of preliminary objection because it directly affects the Court's jurisdiction
- A cause of action arising from termination of employment accrues when the termination takes effect or is communicated to the employee; a criminal acquittal does not alter that date or revive the cause of action
- Continuing consequences of a completed termination are not a continuing injury for limitation purposes; termination is a discrete, completed act
- Statutory limitation under section 89 of the Employment Act is mandatory and jurisdictional; it cannot be extended on grounds of hardship or merits
- An amendment to a pleading cannot retrospectively alter an historical event or create a fresh cause of action
Court orders
#- 1.The Respondent's Notice of Preliminary Objection dated 8th May 2026 is hereby upheld
- 2.The Claimant's suit commenced on 22nd January 2026 is hereby dismissed for being statute-barred under section 89 of the Employment Act, Cap. 226
- 3.The Respondent shall have the costs of the suit and of the Preliminary Objection
- Jurisdiction invoked
- Section 89 of the Employment Act, Cap. 226 - statutory limitation conferring no jurisdiction on the Court over statute-barred claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bukhebi v Factory Guards Ltd (Cause E013 of 2026) [2026] KEMC 448 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/448/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.