[2018] KEELRC 1029 (KLR)
The court found that the question of whether the suit is time barred under section 90 of the Employment Act cannot be determined at this stage because the facts regarding the termination of the claimant's employment are disputed. Specifically, it is unclear when, how, or if the claimant's employment was terminated,...
Source-derived case information.
- Citation
- [2018] KEELRC 1029 (KLR)
- Parties
- Claimant: Chrispinus Ambani Mwanje; Respondent: Factory Guards Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 262 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; suit to proceed to trial
- Judges
- MN Nduma
- Legal Topics
- Limitation of Actions, Summary Dismissal, Employment Status, Salary Arrears
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chrispinus Ambani Mwanje
Claimant
Factory Guards Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time barred under section 90 of the Employment Act.
- 2 Whether the claimant's employment was terminated and, if so, when and how.
- 3 Whether the preliminary objection raises a pure point of law.
Ratio Decidendi
The court found that the question of whether the suit is time barred under section 90 of the Employment Act cannot be determined at this stage because the facts regarding the termination of the claimant's employment are disputed. Specifically, it is unclear when, how, or if the claimant's employment was terminated, as the claimant asserts he was never formally dismissed while the respondent claims summary dismissal occurred on 27th May, 2013. Since the limitation period's commencement depends on the resolution of these disputed facts, the preliminary objection does not raise a pure point of law and cannot be determined without a full hearing. The court therefore dismissed the preliminary...
Court Disposition
preliminary objection dismissed; suit to proceed to trial
Orders
- The preliminary objection is dismissed.
- The matter shall proceed to trial for determination of the main suit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 262 OF 2017
(Before Hon. Justice Mathews N. Nduma)
CHRISPINUS AMBANI MWANJE................CLAIMANT
VERSUS
FACTORY GUARDS LIMITED..............RESPONDENT
R U L I N G
1. The suit was filed vide a Statement of Claim on 13th June, 2017.
2. The pleadings disclose clearly that the employment of the Claimant has not been terminated but he has not been paid his salary since April, 2013 after the Claimant had been arrested, remanded in custody for three weeks, later released on bond and subsequently tried and acquitted in Kisumu Criminal Case No.466 of 2013.
3. The main prayer the Claimant seeks is clarification of his employment status since no letter of termination has been given to him to date and payment of arrear salary in the sum of Kshs.688,128 not paid to him up to the date of filing suit.
4. The Respondent in the Memorandum of Response states that the Claimant deserted work and was informed of his summary dismissal on 27th May, 2013.
5. The fact of when, how and if the employment of the Claimant was terminated is in dispute.
6. The issue as to whether the suit is or is not time barred cannot be determined until this dispute of fact is resolved.
7. The Preliminary Objection raised by dint of section 90 of the Employment Act, that this suit was filed more than three (3) years from the date the cause of action arose cannot be resolved without determining the disputed facts first.
8. The point is not a pure point of Law in terms of the celebrated decision of Mukisa Biscuit Manufacturing Company Limited v West End Distributions Limited (1969) E A 696.
9. The matter shall await determination upon hearing the main suit. The Preliminary Objection is dismissed at this stage and the matter is to proceed to trial.
Dated and Signed in Kisumu this 4th day of October, 2018
Mathews N. Nduma
Judge
Appearances
Mulondo, Oundo, Muriuki & Co. Advocates for the Objector
Namatsi & Co. Advocates for Claimant
Chrispo – Court Clerk