Bukhebi v Factory Guards Ltd (Cause E013 of 2026) [2026] KEMC 448 (KLR) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E013 OF 2026** **RAMADHAN INDUNYI BUKHEBI...……….….……………………………..CLAIMANT** **VERSUS** **FACTORY GUARDS LIMITED…………………….…………………………RESPONDENT** **RULING** **Introduction** 1. Before the Court is the Respondent’s Notice of Preliminary Objection dated 8th May 2026, through which the Respondent challenges the Court’s jurisdiction to hear and determine the Claimant’s suit. 2. The Preliminary Objection is founded on the grounds that: 3. The suit offends the provisions of section 89 of the Employment Act, Cap. 226; 4. The suit is vexatious, frivolous and an abuse of the court process; and 5. It is in the interests of justice that the suit be dismissed with costs to the Respondent. 6. The Court directed the parties to canvass the Preliminary Objection by way of written submissions. The Respondent filed its submissions dated 26th June 2026, while the Claimant filed written submissions dated 29th June 2026. **The Respondent’s case** 1. The Respondent submits that the Claimant instituted the present suit on 22nd January 2026, approximately five years after the termination of his employment. 2. According to the Respondent, the Claimant’s original Memorandum of Claim stated that he was dismissed from employment in 2021. The Respondent contends that after being served with the Preliminary Objection, the Claimant filed an Amended Memorandum of Claim dated 12th May 2026, alleging that his dismissal occurred in October 2023, without producing documentary evidence demonstrating that his employment subsisted until that date. 3. The Respondent relies on a summary dismissal letter dated 25th March 2021, which informed the Claimant that he had been summarily dismissed for gross misconduct with effect from 15th February 2021. The dismissal followed his arrest and arraignment in court on allegations of stealing and/or failing to prevent a felony. 4. The Respondent’s documents further show that the Claimant had initially been suspended by a letter dated 2nd February 2021 following the alleged disappearance of 40 packages or bags of tea from its client’s premises at Cargill Kenya Limited. The suspension was to remain in force pending the outcome of the criminal proceedings. 5. The Respondent submits that although the Claimant was subsequently acquitted through a judgment dated 4th October 2023, the acquittal did not alter the effective date of termination or revive the employment relationship. 6. In the alternative, the Respondent argues that even if the alleged injury were treated as a continuing injury which ceased upon the Claimant’s acquittal on 4th October 2023, the twelve-month period prescribed for instituting a claim founded upon a continuing injury expired on 4th October 2024. The suit filed on 22nd January 2026 would, on that basis, still be out of time. 7. The Respondent also refers to an NSSF statement forming part of the Claimant’s documents, which allegedly shows that Sentinel Security Limited remitted NSSF contributions on the Claimant’s behalf during February, March, April and May 2022. It argues that this demonstrates that the Claimant had obtained alternative employment by 2022 and that his employment with the Respondent could not have continued until October 2023. 8. The Respondent consequently submits that the suit is statute-barred and that the Court lacks jurisdiction to entertain it. **The Claimant’s case** 1. The Claimant opposes the Preliminary Objection principally on the ground that it has been brought under the wrong statutory provision. 2. The Claimant submits that section 89 of the Employment Act relates to contracts of service entered into outside Kenya and does not concern limitation of employment claims. 3. According to the Claimant, limitation of actions under the Employment Act is governed by section 90 of the Act. He therefore argues that the Respondent’s reliance on section 89 renders the Preliminary Objection legally defective. 4. The Claimant also submits that the objection fails to meet the threshold of a valid preliminary objection because it is not founded on a pure point of law. 5. In support of that submission, the Claimant relies on Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 696 and Catherine Kawira v Muriungi Kirigia [2015] eKLR. 6. He argues that the Preliminary Objection should be dismissed with costs and that the suit should proceed to a full hearing so that the evidence may be presented and tested through cross-examination. **Issues for determination** 1. Having considered the pleadings, the Preliminary Objection, the parties’ written submissions and the authorities cited, the issues arising for determination are: 2. Whether the Respondent’s objection raises a proper preliminary point of law; 3. Whether section 89 of the Employment Act governs limitation of employment claims; 4. When the Claimant’s cause of action accrued; 5. Whether the criminal proceedings and the Claimant’s subsequent acquittal extended or revived the limitation period; 6. Whether the suit is statute-barred; and 7. What orders should issue regarding costs. Whether the objection raises a proper preliminary point of law 1. The principles governing preliminary objections were settled in Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited [1969] EA 696. A preliminary objection must raise a pure point of law arising from the pleadings and capable, if upheld, of disposing of the suit. It must be determined on the assumption that the material facts pleaded by the opposing party are correct and must not require the Court to investigate contested facts or exercise judicial discretion. 2. A plea of limitation is expressly recognised as one of the matters that may properly be raised by way of preliminary objection. This is because statutory limitation directly affects the Court’s jurisdiction to entertain the proceedings. 3. In the present case, the principal objection is that the claim was instituted outside the period prescribed by the Employment Act. The Court is therefore called upon to consider the pleaded date of termination, the date on which the suit was instituted and the legal effect of the subsequent criminal proceedings. 4. The dates material to the objection appear from the pleadings and documents forming part of the parties’ respective cases. The Claimant’s original pleading placed the dismissal in 2021. The Respondent’s dismissal letter states that the dismissal took effect from 15th February 2021. The institution of the suit on 22nd January 2026 is not disputed. 5. The Claimant’s contention that the termination occurred in October 2023 is founded upon the date of his acquittal rather than upon a fresh communication by the Respondent terminating his employment in October 2023. 6. The Court is not required, for purposes of the present objection, to determine whether the Respondent had a valid or fair reason for dismissing the Claimant, whether due process was followed, whether the Claimant committed the alleged misconduct or whether he is entitled to the remedies sought. Those are questions that would ordinarily require evidence. 7. The narrower question is whether a claim arising from a termination which became effective in February 2021 could lawfully be commenced in January 2026. That is a question of law capable of being determined from the pleadings and the undisputed chronology. 8. I therefore find that the plea of limitation raises a proper preliminary point of law. Whether section 89 governs limitation 1. The Claimant’s main response is that section 89 of the Employment Act concerns contracts made outside Kenya and that limitation is governed by section 90. That submission appears to have been founded on the former numbering of the Employment Act. 2. Under the currently revised edition of the Employment Act, section 88 is titled “Saving of contracts of service made abroad,” while section 89 is titled “Limitations.” Section 90 now concerns the making of rules by the Cabinet Secretary. 3. Section 89 of the revised Employment Act provides that, notwithstanding section 4(1) of the Limitation of Actions Act, no civil action or proceeding arising from the Employment Act or a contract of service may be instituted unless commenced within three years of the act, neglect or default complained of, or, in the case of continuing injury or damage, within twelve months after its cessation. 4. The statutory provision previously appearing as section 90 was renumbered as section 89 in the revised edition of the Act. The substantive limitation rule remained the same. 5. Consequently, the Respondent’s Preliminary Objection is properly anchored upon section 89 of the current revised Employment Act. 6. The portion of the Act cited by the Claimant as section 89 concerning contracts made abroad is presently section 88. The Claimant’s objection founded upon the statutory numbering therefore lacks merit. 7. In any event, even if the Respondent had mistakenly referred to an incorrect section number while setting out the correct statutory substance, such an error would not necessarily defeat an otherwise clear jurisdictional objection. A court is required to determine the substance of the issue placed before it and to apply the correct law. Accrual of the cause of action 1. A cause of action arising from termination of employment ordinarily accrues when the termination takes effect or is communicated to the employee. The summary dismissal letter dated 25th March 2021 stated that the Claimant was dismissed with effect from 15th February 2021. The dismissal letter also informed the Claimant that he had fourteen days within which to appeal the decision. 2. The letter did not state that the dismissal was provisional, that the employment contract would remain in force until the criminal case was concluded, or that the Claimant would automatically be reinstated upon acquittal. 3. The fact that criminal proceedings were pending did not suspend the legal effect of the dismissal. The employment relationship and the criminal proceedings were distinct processes. 4. The Claimant’s cause of action for alleged unfair termination therefore accrued on 15th February 2021, being the date on which the dismissal took effect. Even if time were calculated from the date of the dismissal letter, namely 25th March 2021, the three-year limitation period would have expired on 25th March 2024. 5. On either computation, the suit filed on 22nd January 2026 was filed well outside the prescribed period. Effect of the acquittal of 4th October 2023 1. The Claimant appears to have associated the termination of employment with his acquittal in the criminal proceedings on 4th October 2023. An acquittal in criminal proceedings does not, without more, alter the date on which an earlier termination of employment took effect. Nor does it automatically reinstate an employee or revive a cause of action that arose upon dismissal. 2. The employer’s decision to terminate employment is assessed on the circumstances and information that existed when the decision was made. The validity of that decision is not necessarily dependent upon a subsequent criminal conviction. 3. The Claimant was therefore entitled to challenge the termination notwithstanding the pendency of the criminal proceedings. He was not legally required to await the conclusion of the criminal trial before filing an employment claim. 4. The acquittal delivered on 4th October 2023 consequently did not create a new termination, postpone accrual of the cause of action or restart the limitation period. Whether there was a continuing injury 1. Section 89 allows a claim founded on a continuing injury or damage to be filed within twelve months after the injury ceases. A distinction must, however, be drawn between a continuing wrongful act and the continuing consequences of a completed act. 2. A continuing injury requires an ongoing breach of a subsisting duty. The fact that the adverse consequences of a completed act continue to be felt does not convert that completed act into a continuing wrong. 3. Termination of employment is a discrete and completed act. Once the contract is terminated, the resulting loss of income, unemployment or other adverse effects may continue, but those continuing effects do not ordinarily constitute a continuing injury for purposes of statutory limitation. 4. In this case, the dismissal was completed when it took effect on 15th February 2021. The subsequent criminal proceedings and the Claimant’s eventual acquittal did not constitute a continuing breach of an existing employment obligation by the Respondent. Accordingly, the claim does not fall within the continuing-injury proviso. 5. Even assuming, solely for argument, that the criminal proceedings created a continuing injury which ceased on the date of acquittal, the Claimant was required to institute the claim within twelve months of 4th October 2023, namely by 4th October 2024. 6. The suit was filed on 22nd January 2026, more than one year after that alternative period had expired. It would therefore remain statute-barred even on the interpretation most favourable to the Claimant. Effect of amendment of the Memorandum of Claim 1. The Respondent states that after service of the Preliminary Objection, the Claimant amended his claim to plead that dismissal occurred in October 2023. 2. An amendment to a pleading cannot retrospectively alter an historical event or create a fresh cause of action where none exists. The operative date is determined from the actual termination of the employment relationship, not merely from the date selected in an amended pleading. 3. There is no indication that the Respondent issued a fresh dismissal letter in October 2023, that it continued paying the Claimant after February 2021, that it deployed him to work after that date, or that it otherwise treated the employment relationship as subsisting until October 2023. The October 2023 date corresponds to the date of acquittal and not to a separate act of termination by the Respondent. The amendment therefore could not revive a cause of action that had already become statute-barred. Jurisdiction and extension of time 1. Statutory limitation under section 89 is mandatory. Once the prescribed period expires, the Court lacks jurisdiction to entertain the claim. 2. In Maweu v Safaricom Ltd [2025] KEELRC 1441 (KLR), the Employment and Labour Relations Court reaffirmed that the limitation period applicable to employment claims cannot be extended and that the restriction operates as a jurisdictional limitation. 3. The principles in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] eKLR are equally applicable: jurisdiction is foundational, and a court which finds that it lacks jurisdiction must take no further step in the proceedings. 4. The Court has no discretion to enlarge the limitation period on grounds of hardship, inadvertence, the pendency of criminal proceedings or the perceived merits of the intended claim. 5. The Claimant’s cause of action accrued on 15th February 2021. The statutory three-year period therefore expired on 15th February 2024. The suit instituted on 22nd January 2026 was filed approximately one year and eleven months after the limitation period had expired. 6. I consequently find that the suit is statute-barred under section 89 of the Employment Act and that this Court lacks jurisdiction to hear and determine it. **Disposition** 1. In view of the foregoing findings, the Court makes the following orders: 2. The Respondent’s Notice of Preliminary Objection dated 8th May 2026 is hereby upheld. 3. The Claimant’s suit commenced on 22nd January 2026 is hereby dismissed for being statute-barred under section 89 of the Employment Act, Cap. 226. 4. The Respondent shall have the costs of the suit and of the Preliminary Objection. Orders accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**