Otieno v Kenya Institute for Public Policy Research & Analysis

2. 6. The amended claims for unlawful deductions, unpaid leave days, gratuity for June, July, August and September 2019, and unpaid reimbursement of expenses are complete, accrued monetary claims and not mere clarications of an existing pleaded cause. 7. All consequential, accessory and derivative reliefs founded upon the said time-barred claims are equally unsustainable and must fall with the principal barred claims. The Respondent shall pray that this Honourable Court be pleased to: a. Uphold this Preliminary Objection; b. Strike out, as incompetent and statute-barred, the amended claims and reliefs relating to: i) Unfair termination; ii) Unlawful deductions; iii) Unpaid leave days; iv) Gratuity for June, July, August and September 2019; and v) Unpaid reimbursement of work-related expenses. c. Strike out all consequential, accessory and derivative reliefs founded upon, owing from, tabulated under, computed from, or otherwise premised upon the said time-barred claims, including any aggregated totals, interest thereon, and any omnibus damages prayer to that extent; d. Find and hold that the said amended claims constitute fresh, independent and time-barred causes of action introduced after expiry of the statutory limitation period and that their admission would unlawfully deprive the Respondent of its accrued defence under section 89 of the Employment Act; and e. Award the costs of the Preliminary objection to the Respondent. Claimant’s replying adavit 3. The Claimant opposed the notice of preliminary objection vide a replying adavit dated 16th June 2026. 4. The Claimant avers that the preliminary objection wrongly refers to a 2017 case, whereas his suit was led in 2019 after his termination in 2019. 5. The Claimant emphasizes that the claims of unfair termination, unlawful deductions, unpaid leave, gratuity, and reimbursements were all contained in the original 2019 pleadings and not introduced through amendments. 6. The Claimant avers that amendments made with leave of court were only to reect the impracticality of reinstatement and to allow ling of additional documents. 7. The Claimant further avers that the Respondent itself amended its response in November 2025, expressly admitted the court’s jurisdiction, and even sought adjournment for out-of-court settlement before retreating to raise the preliminary objections. 8. The Claimant avers that the objection is an afterthought, based on contested facts rather than a pure point of law, and prays that it be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2557/eng@2026-09-25 2

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9. Parties canvassed the notice of preliminary objection by way of written submissions. Respondent’s submissions 10. The Respondent relied on section 89 of the Employment Act, which strictly limits employment claims to three years from the date of the act, neglect, or default complained of, and twelve months in the case of continuing injury. The Respondent argue that the Claimant’s cause of action accrued upon termination in September 2019, meaning the limitation period expired in September 2022, and that the amendments led in February 2025 introduced fresh claims outside this statutory window. 11. To reinforce this, the Respondent rely on Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696, which denes preliminary objections as pure points of law; Oraro v Mbaja [2005] KEHC 3182 (KLR), which cautions against objections entangled with factual disputes; and appellate authorities such as Attorney General & another v Andrew Maina Githinji & Another [2016] KECA 817, and Divecon Ltd v Samani [1995–1998] 1 EA 48, all arming that limitation under the Employment Act is mandatory and jurisdictional. The Respondent also relied the cases of Fred Mudave Gogo v G4s Security Services (K) Ltd [2014] KEELRC 713 (KLR), David Ngala Ochieng v Hatari Security Guards Ltd [2022] KEELRC 1013 (KLR), and Okere v Kakamega Public Service Board & another [2023] KEELRC 2523 (KLR), which consistently hold that termination is a completed act and cannot be treated as a continuing injury. 12. The Respondent submitted that the amended claims covering compensation, gratuity, leave, deductions, reimbursements, and special damages are new causes of action introduced after limitation had lapsed, and that the doctrine of relation back cannot cure time‑barred claims. 13. The Respondent urge the court to strike out the impugned amendments, as section 89 of the Employment Act is couched in mandatory terms and deprives the court of jurisdiction once time has expired. Claimant’s submissions 14. The Claimant submitted that a preliminary objection must rest on a pure point of law and under section 89 of the Employment Act, employment claims must be led within three years from the date the cause of action arose, or within twelve months in the case of a continuing injury. In this matter, the Respondent Institute concedes that the primary suit was led within time but nevertheless seeks to have it struck out on account of amendments, despite the fact that no amendment departs from the original complaint. As established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd(supra), a valid preliminary objection must be based strictly on law without recourse to contested facts, must assume all facts pleaded by the claimant are true, and must be dispositive of the entire suit. Here, the Respondent is mistaken as to the year of ling, admits the suit was within time, and even sought adjournment for settlement before raising the objection, which demonstrates that the objection is neither purely legal nor dispositive. 15. Accordingly, the notice of preliminary objection is devoid of merit and should be dismissed with costs. Analysis and determination 16. The court has considered the notice of preliminary objection together with the rival submissions; the issue for determination is whether the notice of preliminary objection is merited and whether the suit is time barred due to the amended claim led more than three (3) years after the termination. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2557/eng@2026-09-25 3

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17. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd(supra), where Law JA stated as follows: “ ...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.” In the same case, Newbold, JA set out the remit upon which preliminary objections would be founded as follows; “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. 18. In John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR), the Supreme Court held that a preliminary objection consisted of a point of law which had been pleaded, or which arose by clear implication out of pleadings, and which if argued as a preliminary point, could dispose of the suit. 19. In the Supreme Court case of Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR), the court held as follows: “ A true preliminary objection serves two purposes of merit: rstly, it serves as a shield for the originator of the objection, against proigate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword for winning a case otherwise destined to be resolved judicially, and on the merits.” 20. Section 89 of the Employment Act provides as follows: “ Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect, or default complained of, or in the case of continuing injury or damage within twelve months next after the cessation thereof.” 21. Rule 34 of the Employment and Labour Relations Court (Procedure) Rules 2024 provides as follows: “A party may amend pleadings before service or before the close of pleadings: Provided that after the close of pleadings, the party may only amend pleadings with the leave of the Court on oral or formal application, and the other party shall have a corresponding right to amend its pleadings.” https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2557/eng@2026-09-25 4

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22. In Kenya Trypanosomiasis Research Institute v Gusinjilu [2019] KECA 193 (KLR) the Court of Appeal stated as follows: “ Indeed, the purpose of amendments of pleadings is to bring forth disputed matters and ensure that they are determined with nality. Amendments may be allowed at any stage of the proceedings but not when they signicantly change the core of the dispute. In our view, by deeming the application as rightly before it, and by allowing substitution of parties, the trial court did not change the substance of the claim and there was no prejudice occasioned by the amendment.” 23. In Damco Logistics Kenya Limited v Bash Hauliers Limited [2017] KECA 535 (KLR) the Court of Appeal stated as follows: “ We reiterate that amendments should be allowed freely if sought before trial to enable parties to lay all of the matters in controversy before the court for the sake of their ecient, expeditious, complete and cost-eective determination. Justice is best served by allowing parties to bring forth all their legitimate and genuine claims and defences rather than shutting them out on grounds of delay or such unless there is obvious mischief and a real likelihood of injustice or prejudice that cannot be compensated by an order of costs. The learned Judge ought to have borne in mind the guidance of this Court given in Central Keny Ltd Vs. Trust Bank Ltd (supra) at 369-70; “Mere length of proposed amendments is not a ground for declining leave to amend. The overriding consideration in applications for such leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise, mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite party beyond monetary compensation in costs. The policy of the law is that amendments to pleadings are to be freely allowed unless by allowing them the opposite side would be prejudiced or suer injustice which cannot properly be compensated for in costs.” 24. In this instant case, the Claimant amended the memorandum of claim vide the amended Memorandum of claim dated 6th September 2019 inorder to properly frame the issues for determination. The Respondent contends that the suit is time‑barred under section 89 of the Employment Act, which requires employment claims to be led within three years from the date the cause of action arose, or within twelve months in the case of a continuing injury. The Claimant maintains that the amendments did not introduce new claims but merely claried the original pleadings, whereas the Respondent insists that the statutory limitation period has lapsed. 25. The Claimant duly amended the Memorandum of claim to raise the considered issues for determination, while the Respondent equally sought and obtained leave to le an amended response in accordance with Rule 34 of the Employment and Labour Relations Court (Procedure) Rules, 2024. This demonstrates that the amendments followed due procedure and remain properly on record. The claim had been led on 6th September 2019 and was within time. The matters raised by the Respondent are not pure points of law and can be determined within the course of proceedings. The central issue for determination is whether the Claimant’s employment was unfairly, wrongfully, and procedurally terminated by the Respondent and what reliefs if any is he entitled. The issues raised by the Respondent would require court to consider them and make a determination. They are therefore not in the ambit of pure points of law. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2557/eng@2026-09-25 5

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26. It is unfortunate this is a very old case and the parties have been guilty of delaying the determination of the same. Even at some point, the Respondent had prayed for time to attempt Alternative Dispute Resolution but nothing came out of it. 27. The court nds the Preliminary objection is not merited and is dismissed. The case must be heard and determined within the next 6 months. Hearing to proceed on 17th November 2026. 28. Each party will bear its respective costs. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 25TH DAY OF SEPTEMBER 2026. ANNA NGIBUINI MWAURE JUDGE Order In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2557/eng@2026-09-25 6

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