[2014] KEELRC 1428 (KLR)
The court found that the determination of whether the suit was time-barred depended on establishing the effective date of dismissal, which was disputed. The claimant alleged he did not receive the dismissal letter and only became aware of his termination upon his advocate's inquiry. Since the facts regarding the...
Source-derived case information.
- Citation
- [2014] KEELRC 1428 (KLR)
- Parties
- Applicant: Alex Oluchili Miloko; Respondent: Nakumatt Holdings Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 253 of 2014
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Before Substantive Hearing
- Outcome
- preliminary objection dismissed with costs to the claimant
- Judges
- MSA Makhandia
- Legal Topics
- Limitation of Actions, Effective Date of Dismissal, Preliminary Objection, Service of Dismissal Letter
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Oluchili Miloko
Applicant
Nakumatt Holdings Ltd
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Before Substantive Hearing
Legal Issues
- 1 Whether the suit is time-barred under section 90 of the Employment Act due to being filed more than three years after the alleged date of dismissal.
- 2 Whether the effective date of dismissal is the date stated by the employer or the date the claimant became aware of the dismissal.
- 3 Whether a preliminary objection can be sustained where facts are disputed and require examination.
Ratio Decidendi
The court found that the determination of whether the suit was time-barred depended on establishing the effective date of dismissal, which was disputed. The claimant alleged he did not receive the dismissal letter and only became aware of his termination upon his advocate's inquiry. Since the facts regarding the date of dismissal and communication thereof were in dispute and required factual examination, the court held that it would be premature to strike out the claim at the preliminary stage. A true preliminary objection must be based on uncontested facts and pure points of law; where facts are in dispute, the objection cannot be sustained. Accordingly, the preliminary objection was...
Court Disposition
preliminary objection dismissed with costs to the claimant
Orders
- The preliminary objection is dismissed.
- The respondent shall pay costs of the objection to the claimant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 253 OF 2014
ALEX OLUCHILI MILOKO.......................................................CLAIMANT
v
NAKUMATT HOLDINGS LTD.............................................. RESPONDENT
RULING
For determination is a Preliminary objection filed by Nakumatt Holdings Ltd (Respondent) on 15 August 2014 to the effect
1. THAT the suit herein is time barred under section 90 of the Employment Act since it is brought over (3) three years after the termination of the claimant on the 1st March 2010.
2. THAT any further proceedings in this suit would be in clear breach of the statutory provision and the constitutional principles of respect for rule of law and separation of powers of the legislature and judiciary.
3. THAT this suit is incompetent and should consequently be dismissed with costs to the Respondent employer.
In the Memorandum of Claim filed in Court on 27 June 2014, it is pleaded that the Claimant learnt of his dismissal after his Advocates L.M. Ombete & Co. Advocates wrote to the Respondent on 29 January 2013. The Respondent replied to the Advocate through a letter dated 31 January 2013, stating that the Claimant was dismissed with effect from 1 March 2010. The letter further stated that the dismissal letter was sent to the Claimant through registered post and a copy of a certificate of posting was enclosed.
The Claimant further pleaded that the dismissal letter never reached him and that he learnt of his dismissal only after the Respondent replied to his Advocates letter.
Those are the facts as presented by the Claimant.
The Respondent has not yet filed a Response to place before the Court its version of the facts.
The facts as pleaded by the Claimant have placed the question of effective date of dismissal in issue. The dismissal herein was purportedly communicated by letter sent through post and whose receipt is denied. Ancillary issues would include whether an employee can reasonably be expected to commence action before receiving communication of dismissal.
In my view, the pleadings as they stand now will require an examination of facts to establish the effective date of dismissal and, therefore it would be precipitate to strike out the Memorandum of Claim at this stage.
It is germane to revisit what a true preliminary objection is. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969)EA 696 it was held thatSo far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit……and
The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary Objection. 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 had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop
The fact that the Respondent has failed to file a Response to state its version only makes it more difficult to accept that the preliminary objection is a true preliminary objection arising out of the Claimant’s pleadings.
The Court therefore declines to uphold the preliminary objection and dismisses it with costs to the Claimant.
Delivered, dated and signed in open Court in Nakuru on this 21st day of November 2014.
Radido Stephen
Judge
Appearances
For Claimant Mr. Kirwa instructed by Mwakio Kirwa & Co. Advocates
For Respondent Mr. Kali instructed by Nyaberi & Co. Advocates