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MagistrateDismissedNot stated in the judgment

Mulati v County Secretary County Government of Bungoma & 3 others (Employment and Labour Relations Cause E008 of 2026) [2026] KEMC 564 (KLR)

Employment and Labour Relations Court (Magistrates' Court)
30 June 2026
1,714 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma employment court dismissed an employer's attempt to throw out a claim as time-barred, because when the employment actually ended is a disputed fact.

What this practically means

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Executive summary

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This ruling by Senior Resident Magistrate T.O. Omono at Bungoma determines the Respondents' Notice of Preliminary Objection dated 12th March 2026, which asserted that the Claimant's suit filed in 2026 was statute barred under section 89 of the Employment Act, the cause of action having arisen in 2019 when the salary stopped being paid, which non-payment the Respondents equated to constructive dismissal. The Claimant opposed through Grounds of Opposition dated 7th May 2026, contending that the claim concerns a continuing injury because he remains the Respondents' employee despite not being paid since 2019, and that under section 89 a cause of action in continuing injury cases arises only upon cessation of the injury. He also urged that the objection was grounded on disputed facts. The court set out the classic test for preliminary objections from Mukisa Biscuits and the Supreme Court's Aviation & Allied decision: an objection must be a pure point of law capable of disposing of the suit, with no contest on facts. Although accepting that non-payment of salary constitutes constructive dismissal, the court found that when the cause of action arose, whether employment terminated in 2019 and whether the Claimant remains employed are disputed facts incapable of determination at the interlocutory stage. The objection was held not properly before the court and bereft of merit, and was dismissed. Costs were made to abide the outcome of the suit, and Claimant's counsel was directed to identify the proper parties in a county government employment dispute.

Key legal issues

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01

Whether the preliminary objection on limitation was properly before the court

Holding

It was not properly before the court because it was grounded on disputed facts, namely when the cause of action arose and whether the Claimant is still in employment.

Reasoning

A preliminary objection must rest on a pure point of law with no contest as to facts. Here the parties diverged on when the cause of action arose, whether non-payment of salary since 2019 amounted to constructive dismissal terminating employment, and whether the Claimant remains an employee. Those factual questions can only be resolved after a full hearing, so the limitation objection fails as a preliminary point.

p. 4
02

Whether the preliminary objection was merited

Holding

Not merited, following the finding that it is based on disputed facts.

Reasoning

Having found that the objection rests on disputed facts, the court held it bereft of merit and dismissed it. The court accepted that non-payment of salary constitutes constructive dismissal but noted the Claimant's pleading that he remains in employment, making the limitation question incapable of summary determination at the interlocutory stage.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where any fact has to be ascertained
  • Employment claims must be filed within three years under section 89 of the Employment Act; claims of continuing injury must be filed within twelve months after cessation of the continuing injury
  • The limitation period in contract-based employment claims is never extended; it runs from the date termination is communicated

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 12th March 2026 is dismissed
  2. 2.Costs to abide the outcome of this suit
  3. 3.The Claimant's counsel is directed to find out the proper party or parties to be sued in cases involving disputes arising from a contract of service between a county government employee and a county government
Jurisdiction invoked
Section 89 of the Employment Act (limitation of employment claims), the suit arising from a contract of service between a county government employee and a county government

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, "Mulati v County Secretary County Government of Bungoma & 3 others (Employment and Labour Relations Cause E008 of 2026) [2026] KEMC 564 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/564/eng@2026-06-30

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