Teresia Njoki Ngugi v Kenya County Government Workers Union

iii. THAT therefore, the instant suit is frivolous, scandalous, vexatious, misconceived, hopeless, a non-starter, an abuse of the Court process and thus a suitable candidate for dismissal and/or striking out with costs to the Respondent herein. 2. The Preliminary Objection was canvassed by way of written submissions. The Respondent filed written submissions together with further written submissions, while the Claimant filed submissions in opposition to the objection. The Respondent's Submissions 3. The Respondent submits that the Preliminary Objection raises pure points of law capable of disposing of the entire suit without the necessity of receiving evidence. According to the Respondent, the objection is based on undisputed facts in the Claimant's own pleadings and concerns the Court's jurisdiction to entertain the claim in light of the statutory limitation period prescribed under Section 89 of the Employment Act. 4. It is the Respondent's case that the Claimant's claim arises from an employment relationship that came to an end upon her retirement in 2018 and concerns alleged unpaid gratuity. 5. The Respondent submits that the cause of action accrued when the alleged default in payment occurred and, in any event, not later than 23rd November 2021 when the Respondent communicated its position regarding the gratuity payable to the Claimant and disputed the amount 2 |RULING CAUSE NO. E1137 OF 2025

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claimed. It therefore contends that the limitation period prescribed under Section 89 of the Employment Act expired before the institution of the present suit on 16 th October 2025. 6. The Respondent further submits that the Claimant cannot rely on allegations of subsequent promises, verbal assurances or acknowledgments to defeat the operation of the statutory limitation period. It maintains that no promise to pay gratuity was made after the communication of 23 rd November 2021 and that any assertions regarding continued negotiations or assurances are unsupported and cannot alter the date upon which the cause of action accrued. 7. According to the Respondent, the Claimant's own pleadings demonstrate that the last instalment of gratuity was paid on 6th May 2021 and that the dispute concerning gratuity crystallized upon the Respondent's letter dated 23 rd November 2021. The Respondent therefore argues that no disputed facts require investigation by the Court and that the issue before the Court is purely one of law concerning limitation of actions and jurisdiction. 8. The Respondent further submits that the Claimant's reliance on alleged promises extending between the years 2022 and 2025 is inconsistent with the pleadings and cannot properly be considered in determining the objection. 9. It maintains that the Court should determine the issue solely on the basis of the pleadings before it, which, in its view, 3 |RULING CAUSE NO. E1137 OF 2025

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establish that the claim was instituted outside the statutory limitation period. 10. It is therefore the Respondent's position that the suit is statute barred under Section 89 of the Employment Act and that, once limitation has set in, this Court lacks jurisdiction to hear and determine the claim. 11. The Respondent consequently urges the Court to uphold the Preliminary Objection and strike out the Memorandum of Claim with costs. The Claimant's Submissions 12. The Claimant opposes the Preliminary Objection and submits that it does not satisfy the threshold of a valid preliminary objection as it is founded on disputed facts whose determination requires the Court to receive evidence. The Claimant contends that the objection is premised on contested questions concerning when the cause of action accrued, the existence of subsequent promises to pay gratuity, acknowledgments of indebtedness, and installment payments made after retirement. 13. The Claimant submits that following her retirement, the Respondent acknowledged liability for her gratuity and communicated that the amount due would be settled through monthly Respondent installments. subsequently She avers altered the that the payment arrangements, continued making installment payments and repeatedly assured her that the outstanding gratuity would 4 |RULING CAUSE NO. E1137 OF 2025

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be settled, thereby creating a legitimate expectation that payment would be completed. 14. According to the Claimant, the Respondent continued engaging with her regarding settlement of the gratuity even after the date now relied upon in support of the Preliminary Objection. She further contends that the Respondent's own submissions dispute matters relating to the dates of payment, the existence of promises, and the alleged acknowledgments of debt, thereby demonstrating that the objection cannot be determined without receiving evidence. 15. The Claimant further submits that determining the true date when the cause of action accrued will require the Court to examine correspondence exchanged between the parties, the circumstances surrounding the installment payments, the promises made by the Respondent and the legal effect of those communications. These, according to the Claimant, are matters that can only be properly resolved during a full hearing after the parties have adduced evidence. 16. The Claimant therefore urges the Court to find that the Preliminary Objection does not raise a pure point of law capable of disposing of the suit at this stage and prays that it be dismissed with costs so that the dispute may proceed to hearing on its merits. Analysis and determination 17. I have carefully considered the Notice of Preliminary Objection, the parties’ pleadings, and the rival submissions. 5 |RULING CAUSE NO. E1137 OF 2025

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The singular issue for my determination is whether the Respondent's Notice of Preliminary Objection raises a pure point of law capable of disposing of the suit on account of limitation under Section 89 of the Employment Act, 2007. 18. Section 89 of the Employment Act, 2007 provides that a civil action arising from the Employment Act or a contract of service shall not lie unless commenced within three years next after the act, neglect or default complained of, save for a continuing injury or damage, which must be instituted within twelve months after its cessation. This provision is couched in mandatory terms. 19.There is no dispute that a plea of limitation is, in principle, capable of being raised by way of a Preliminary Objection. The locus classicus remains that in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where the Court held that a Preliminary Objection must raise a pure point of law capable of disposing of the suit and must be argued on the assumption that the facts pleaded by the opposite party are correct. It cannot stand where facts have to be ascertained or evidence taken. The Court of Appeal recently reaffirmed this principle in Mutungi v FEP Sacco Society Limited & 2 others [2024] KECA 494 (KLR). 20.Similarly, in Oraro v Mbaja [2005] 1 KLR 141, the Court emphasized that a purported Preliminary Objection must not 6 |RULING CAUSE NO. E1137 OF 2025

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be blurred with factual matters which are contested and require proof by evidence. 21.The Respondent's contention is that the cause of action accrued on or before 23rd November 2021. The Claimant pleads that after retirement, the Respondent acknowledged the gratuity liability, agreed to settle it by instalments, made payments at different times and continued to give assurances concerning payment of the outstanding balance. The Claimant states that the last instalment was made on 8th July, 2025. 22.Significantly, the Respondent disputes those assertions. It denies any subsequent promises or acknowledgments and contends that the last relevant payment was made on 6th May 2021, while its letter of 23rd November 2021 crystallized the dispute. 23.What the court in the circumstances is expected to determine, among other matters, is whether there were payments after 6th May 2021, whether the Respondent acknowledged the outstanding gratuity, whether the alleged promises to pay were actually made and finally, what legal effect should be attributed to the correspondence exchanged between the parties. These, in my view, are evidential questions, and not pure questions of law. 24.The fact that the Respondent relies upon the Claimant's pleadings does not, by itself, cure this difficulty. The Court must consider the Claimant's pleaded case as a whole. 7 |RULING CAUSE NO. E1137 OF 2025

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Where the Claimant has specifically pleaded facts which, if proved, could affect the date of accrual of the cause of action, the Court cannot, at the Preliminary Objection stage, simply reject those facts and accept the Respondent's version of events. 25.In Mutungi v FEP Sacco Society Limited & 2 others [2024] KECA 494 (KLR), the Court of Appeal held that a jurisdictional issue could not be determined as a pure point of law where the determination required contested documentation and factual verification. 26.I am therefore unable, on the present record and at this Preliminary Objection stage, to accept the Respondent's proposition that 23rd November 2021 conclusively constituted the date of accrual of the cause of action. The argument that the Court lacks jurisdiction must therefore await determination of the underlying limitation question on the basis of evidence. 27.While limitation may ultimately deprive the Court of jurisdiction to entertain a claim that is demonstrably out of time, jurisdiction cannot be said to have been ousted on the basis of disputed facts which have not yet been established. 28.In the circumstances, I find and hold that the Preliminary Objection does not in this case qualify as a proper Preliminary Objection, since it requires the ascertainment of contested facts concerning the accrual of the gratuity claim and subsequent payments or acknowledgments. 8 |RULING CAUSE NO. E1137 OF 2025

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29.Consequently, I find the Respondent's Notice of Preliminary Objection dated 24 February 2026 is without merit, and is accordingly dismissed with costs to the Claimant. 30.The costs awarded shall be in the cause. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. C. N. BAARI JUDGE Appearance: Ms. Mutua h/b for Mr. Abidha for the Claimant Mr. Oginga h/b for Mr. Mwaura for the Respondent Ms. Esther S -C/A 9 |RULING CAUSE NO. E1137 OF 2025

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