Musau v Supersleek Limited (Miscellaneous Application E390 of 2025) [2026] KEELRC 1345 (KLR) (21 May 2026) (Ruling)

Musau v Supersleek Limited (Miscellaneous Application E390 of 2025) [2026] KEELRC 1345 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1345 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Miscellaneous Application E390 of 2025 CN Baari, J May 21, 2026 Between Bernard Mutinda Musau Applicant and Supersleek Limited Respondent Ruling 1.This ruling relates to a Notice of Preliminary Objection by the Respondent dated 16th December, 2025. 2.The Respondent’s Objection is that the application by the Applicant is statute barred as it relates to events and injuries that occurred on 19th July, 2019. 3.Parties were directed to canvass the objection through written submissions, and submissions were filed for both parties. The Respondent’s Submission 4.The Respondent submits that the prayers in the motion dated 6th October 2025 are statute-barred to the extent that they relate to injuries allegedly sustained on 19th July 2019. It submits further that the Applicant maintains that he is not seeking enforcement of an award, but rather requests the Court to assess compensation arising from the injury sustained on that date, and argues that the application seeks resolution of a dispute concerning the alleged workplace injury and the Respondent’s alleged failure to complete Part I of the DOSH forms, thereby invoking Section 86 of the Employment Act and the provisions of the Work Injury Benefits Act. 5.The Respondent’s further submission is that Section 86(1) of the Employment Act provides that where an employer or employee neglects or refuses to fulfil a contract of service, where a dispute arises concerning the rights or liabilities of either party, or where issues arise relating to misconduct, neglect, ill-treatment, or injury to the person or property of either party under a contract of service, the aggrieved party may lodge a complaint before a labour officer or file a complaint or suit before the Employment and Labour Relations Court. 6.It argues that Section 86(2) grants exclusive jurisdiction to the Employment and Labour Relations Court to determine such disputes, providing that no other court shall hear or determine complaints or suits contemplated under subsection (1). 7.It is its submission that Section 89 of the Employment Act provides that no civil action or proceedings arising out of the Employment Act or a contract of service may be instituted unless commenced within three years from the date of the act, neglect, or default complained of, or within twelve months from the cessation of a continuing injury or damage. 8.The Respondent submits that more than three years have elapsed since the Claimant allegedly sustained the injury on 19th July 2019, rendering the claim statute-barred. It submits that although the Claimant seeks to invoke the doctrine of continuing injury under the Work Injury Benefits Act (WIBA), the Respondent argues that WIBA does not recognize or incorporate the concept of continuing injury. 9.The Respondent further submits that the Work Injury Benefits Act (WIBA) prescribes strict timelines for reporting and lodging claims relating to workplace injuries. In particular, reliance is placed on Section 26(1) of WIBA, which provides that an employee loses the right to compensation if the claim is not reported within the stipulated period. 10.The Respondent submits that the section states that a claim for compensation must be lodged, in the prescribed manner, within twelve months from the date of the accident or, in the case of death, within twelve months from the date of death. According to the Respondent, WIBA specifically refers to the “date of the accident” and does not recognize the concept of a continuing injury. 11.The Respondent argues that the Claimant cannot rely on the doctrine of continuing injury to circumvent the statutory limitation periods. 12.On the basis of the foregoing, the Respondent contends that the application before the Court is statute-barred under both Section 89 of the Employment Act and Section 26(1) as read together with Section 27(1) of the Work Injury Benefits Act. 13.The Respondent maintains that the issues raised are purely legal in nature and therefore satisfy the threshold for a preliminary objection, and accordingly urges the Court to uphold the objection and strike out the application. The Applicant’s Submissions 14.The Applicant states that he seeks orders compelling the Respondent to complete a DOSH Form, facilitate compensation based on a 42% permanent incapacity assessment, and sanctions against the Respondent for alleged non-compliance with the Work Injury Benefits Act (WIBA). It is his position that the claim arises from a workplace injury sustained on 19th July 2019, which the Applicant states caused spinal and nerve damage leading to permanent complications and chronic pain. 15.The Applicant contends that the initial DOSH assessment conducted in 2019, which assessed incapacity at 0%, was invalid because it was undertaken in his absence while he was bedridden. He instead relies on subsequent medical assessments conducted in 2025, which assess permanent incapacity at 42%, and alleges that the Respondent has refused to complete the requisite DOSH documentation despite requests from the labour officer. 16.Bottom of Form 17.The Applicant submits that the Preliminary Objection does not raise a pure point of law, and that the claim is not time-barred because it concerns a continuing injury whose cessation occurred in January 2025. He submits that the 2019 DOSH assessment was procedurally defective, and that time should be extended due to the Respondent’s alleged fraudulent concealment of the true extent of the injury. 18.Relying on the decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the Applicant submits that a preliminary objection can only succeed where it raises a pure point of law capable of disposing of the matter without the need for factual inquiry. The Applicant argues that the Respondent’s objection is founded on disputed factual issues, including the validity of the 2019 DOSH assessment, which is alleged to have been conducted fraudulently and in the Applicant’s absence contrary to Section 45(3) of WIBA, the actual date of cessation of the continuing injury, and whether the Respondent refused to engage with the 2025 medical assessment. 19.According to the Applicant, these contested matters require evidentiary interrogation and cannot properly be determined at the preliminary stage. 20.The Applicant therefore submits that the Respondent’s Preliminary Objection ought to be dismissed as it raises contested factual issues that can only be resolved through a full hearing and evaluation of evidence. 21.The Applicant further contends that the claim is not statute-barred under Section 90 of the Employment Act, 2007, which permits claims founded on a continuing injury to be filed within twelve months from the date of cessation of the injury. According to the Applicant, the injury is continuous in nature, manifested through chronic pain, lifelong physiotherapy, permanent incapacity, and eventual forced resignation from employment in January 2025 due to the worsening effects of the injury. 22.The Applicant therefore argues that cessation occurred on 31st January 2025 and, since the Application was filed on 8th October 2025, it was lodged within the statutory twelve-month period. 23.The Applicant also maintains that the dispute arises from both the employment relationship and the provisions of WIBA, as read together with Section 87(1) of the Employment Act, thereby bringing the matter properly within the jurisdiction of the Employment and Labour Relations Court. 24.The Applicant prays that the Preliminary Objection be dismissed with costs. Determination 25.The sole issue for my determination is whether the Respondent’s Preliminary Objection raises a pure point of law capable of disposing of the application, and if it does, whether the application is statute-barred. 26.The legal position on Preliminary Objections was well laid down in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs West End Distributors Ltd (1969) EA 696, where the court held as follows: -“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. 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… 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.” 27.The Objection in this suit is a plea of limitation premised on Section 89 of the Employment Act, 2007. Section 89 states thus;“Notwithstanding the provisions of section 4 (1) of the Limitation of Actions Act, 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 or in the case of continuing injury or damage within twelve months next after the cessation thereof.” 28.The Court in the Mukisa Biscuit (supra) case clearly stated that a preliminary objection cannot be based on contested facts or where evidentiary examination is required. 29.The Respondent’s objection is anchored in the limitation under Section 89 of the Employment Act and Sections 26 and 27 of the Work Injury Benefits Act (WIBA). 30.Limitation of actions is no doubt a pure point of law capable of being raised preliminarily. However, where its application depends on disputed facts, such as the date of cessation of the injury or whether an injury is continuing, the matter ceases to be purely legal. 31.In Divecon Ltd v Samani [1995–1998] 1 EA 48, the Court of Appeal held that limitation goes to jurisdiction and can be raised at any stage. However, courts have equally held that where the computation of time depends on contested facts, it cannot be determined as a preliminary objection. 32.Further, in Kenya Ports Authority v Timberlake (K) Ltd [2017] eKLR, the Court held that limitation issues requiring factual interrogation cannot be resolved at the preliminary stage. 33.Section 89 of the Employment Act, 2007 bars actions after three years, or twelve months in cases of continuing injury after cessation. The Respondent argues that the cause of action accrued on 19th July 2019 and therefore time lapsed. 34.The Applicant, however, contends that the injury is continuing in nature and that cessation occurred upon forced retirement on 31st January 2025. He further contends that his application, filed on 8th October 2025, falls within the statutory 12 month period. 35.In Attorney General & another v Andrew Maina Githinji & another [2016] eKLR, the Court held that continuing injury delays accrual of the cause of action until cessation of the injury. 36.Similarly, in G4S Security Services (K) Ltd v Joseph Kamau & 468 others [2018] eKLR, the Court affirmed that where injury is continuous, limitation runs from the date of cessation. 37.In my considered view, whether the injury in this case is truly “continuing” is a contested factual issue requiring evidential examination. 38.Pursuant to Section 26 (1) of WIBA, claims arising from the Act ought to be lodged within twelve months of the accident. The Respondent argues for the strict application of this provision, relying on the absence of recognition of continuing injury under WIBA. 39.Whether the 2019 assessment is final, whether it was procedurally valid, and whether subsequent medical reports alter the compensation position are factual issues that cannot, in my view, be resolved at this stage. 40.The Applicant herein has challenged the validity of the 2019 DOSH assessment based on alleged procedural irregularity. While the Respondent contests the existence of a continuing injury culminating in the 2025 cessation, the Applicant contends that the Respondent refused to complete the statutory forms. These, in my opinion, are not pure points of law but contested issues of fact. 41.Finally, while limitation is a point of law, its application in this case largely depends on disputed facts, which lead me to the conclusion that the Respondent’s Preliminary Objection does not meet the strict threshold set in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. 42.The Objection therefore fails and is dismissed with costs in the cause. 43.It is so ordered. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 21ST DAY OF MAY, 2026.C. N. BAARIJUDGE.Appearance:Mr. Mwaura present for the ApplicantMr. Kiplagat present for the RespondentMs. Esther S- C/A5|RULING MISC.APPL. NO. E390 OF 2025