REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI ELRC CAUSE NO E209 OF 2026 DR. STEPHEN MWENJE MBIRARU……………………….......CLAIMANT VERSUS PATMED HEALTHCARE LIMITED………………………..RESPONDENT RULING Background 1. The Claimant instituted this action against the Respondent alleging that the latter unlawfully terminated his contract of service through constructive dismissal from employment. He contends that the Respondent hired his services as a Medical Officer with effect from 5th April 2022. However, he avers that the Respondent breached fundamental terms of the contract which forced him to resign from employment with effect from 28th February 2023. As such, he prays for the various reliefs as set out in the Statement of Claim. 2. The Respondent has filed a Notice of Preliminary Objection to the suit. It contends that the case is statute barred by virtue of section 89 of the Employment Act and ought to be struck out. ELRC CAUSE NO E209 OF 2026 1
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3. The Claimant has opposed the objection. According to him, the suit was filed within the timelines which the law provides. Analysis 4. The objection by the Respondent is premised on section 89 of the Employment Act. The provision requires suits based on a contract of service or the Act to be filed within three years of accrual of the cause of action or, in case of a continuing injury claim, within one year of cessation of the injury. 5. The Respondent alleges that the Claimant’s claim is premised on non-remittance of various statutory dues. As such, it is a continuing injury claim which ought to have been filed within one year of his resignation. According to the Respondent, the suit should have been filed by 28 th February 2024. 6. The Respondent avers that the suit was filed on 27 th February 2026 which was well outside the one year window provided for filing continuing injury claims. As such, it asserts that the suit is time barred. 7. On the other hand, the Claimant contends that his claim is about unlawful termination of his services through constructive dismissal from employment. According to him, section 89 of the Employment Act permits the filing of such ELRC CAUSE NO E209 OF 2026 2
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claims within three years of the cause of action arising. As such, he avers that the suit was filed within the three year window provided in law and is thus properly before the court. 8. The Respondent’s objection is misguided. The claim as presented is clearly anchored on constructive dismissal. A claim for constructive dismissal is not a continuing injury claim which ought to be presented within one year of cessation of the injury complained of. Such claim (constructive dismissal) should be filed within three years of the cause of action arising. 9. Reference by the Claimant to the alleged failure by the Respondent to remit his statutory dues relating to NHIF, NSSF and PAYE does not mean that those breaches constitute the cause of action for his claim. Rather, they are the reason why he allegedly resigned from employment and pleaded constructive dismissal, which is the cause of action in the suit. 10. The Claimant tendered his resignation notice on 1 st February 2023. As both parties agree, the notice took effect on 28 th February 2023 in terms of clause 10.1 in the letter of contract between the parties. As such, the last day for filing suit in terms of section 89 of the Employment Act was 28th February 2026. 11. The parties agree that the Claimant filed suit on 27 th February 2026, one day before the claim was to become ELRC CAUSE NO E209 OF 2026 3
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time barred. As such, the suit was filed within the three year window which the law provides. 12. In any event, the assertion by the Respondent that the breaches complained about constitute a continuing injury claim is not merited. According to the Court of Appeal finding in the case of G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] KECA 827 (KLR), breaches relating to non-payment of terminal dues do not result in a continuing injury as they are stand-alone claims which entitle the aggrieved party to institute suit within three years of termination of his/her contract of service. Determination 13. The upshot is that the instant suit is not time barred. 14. Consequently, the Respondent’s preliminary objection is unmerited and is dismissed. 15. Costs of the objection are granted to the Claimant. Dated, signed and delivered on the 8th day of October, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent ELRC CAUSE NO E209 OF 2026 4
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ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI ELRC CAUSE NO E209 OF 2026 5
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