David Onsongo Mogaka v Wakenya Pamoja SACCO Society Ltd

2. On 15th June 2026 the Respondent entered appearance and simultaneously filed a Preliminary Objection on the following grounds: (a) THAT this Honourable Court lacks jurisdiction to hear and determine this matter by dint of section 29(3) and (4)(b) of the Employment and Labour Relations Court Act, 2011 and pursuant to Gazette Notice No. 6024 of 22nd June 2018. (b) THAT the Claim is time barred under the provisions of section 89 of the Employment Act. (c) (d) THAT the suit is an abuse of the court process. THAT in the circumstances, the matter is procedurally and substantively bad in law, hence suitable to be dismissed and/or struck out with costs to the Respondent. 3. The Preliminary Objections was disposed of by way of written submissions. On 28th July 2026, the Court noted that the Claimant appeared to have difficulty articulating his case and requested Counsel for the Respondent to assist him in obtaining appropriate guidance. Counsel undertook to assist Page 2 of 6

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the Claimant provided he visited his chambers. From the submissions subsequently filed, however, it appears that the Claimant did not obtain the intended assistance, as his submissions largely address matters unrelated to the Preliminary Objection. Respondent’s Submissions 4. The Respondent submits that the Preliminary Objection meets the threshold set out in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696, as it raises pure points of law, namely jurisdiction and limitation, which arise from the pleadings and have the capacity to dispose of the suit. The Respondent contends that this Court lacks jurisdiction to entertain the claim because the Claimant’s monthly salary was Kshs. 3,367/-, which is below the Kshs. 80,000/- threshold prescribed for the Magistrates’ Court pursuant to section 29(3) of the Employment and Labour Relations Court Act and Gazette Notice No. 6024 of 22nd June 2018. The Respondent further submits that the claim is statute-barred. It points out that the Claimant retired in 2002, yet this suit was filed more Page 3 of 6

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than two decades later. It therefore contends that the claim is barred by section 89 of the Employment Act, which prescribes a three-year limitation period for claims arising out of an employment relationship. 5. On jurisdiction, the Respondent relies on Owners of Motor Vessel “Lilian S” v Caltex Kenya Limited [1989] KECA 48, for the proposition that a court must down its tools once it finds that it lacks jurisdiction. It also relies on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, for the proposition that jurisdiction flows from the Constitution or statute and cannot be conferred or expanded through judicial craft or innovation. 6. On limitation, the Respondent relies on Attorney General & another v Andrew Maina Githinji & another [2016] eKLR, in which the Court underscored that a claim founded on an employment contract cannot be instituted after the expiry of three years, notwithstanding the provisions of section 4(1) of the Limitation of Actions Act. In view of the foregoing, the Respondent submits that the delay of Page 4 of 6

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approximately 23 years in instituting the claim cannot be cured by Article 159 of the Constitution. It therefore urges the Court to uphold the Preliminary Objection and dismiss or strike out the suit with costs. Claimant’s Submissions 7. In his submissions, the Claimant addresses the issue of conservatory orders and contends that he will suffer prejudice as a result of the Respondent’s alleged violation of the Constitution. He further maintains that the Respondent is employing subversive techniques to avoid paying his gratuity. Disposition 8. The question that the preliminary objection seeks to have answered is whether there is jurisdiction reposed in this Court. It is asserted the Court lacks pecuniary jurisdiction and that the claim is statute barred. The claim relates to an amount of Kshs. 737,560/- which remains unpaid. There is apparently no defence to this as the Respondent has not paid the sum, and from the action herein is not keen to settle it. Page 5 of 6

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9. A reading of the law applicable at the time makes it apparent that the Claimant ought to have filed the suit within 6 years of the accrual of the cause of action in terms of section 4(1) of the Limitation of Actions Act. Had the Claimant moved the Court in 2002 or within the period prescribed by law there would have been no escape route for the Respondent. At the time the cause of action accrued, there was permission to extend time. Sadly, as at the point of filing suit, the present suit against the Respondent is time barred. The inevitable outcome is that the suit is for striking out. Suit is struck out with no order as to costs, meaning each party will bear their own costs. It is so ordered. Dated and delivered at Kisii this 28th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 6 of 6

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