[2018] KEELRC 1901 (KLR)

REPUBLIC OF KENYA0

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 1225 OF 2017

(Before Hon. Justice Hellen S. Wasilwa on 31st May, 2018)

DICKSON MUNENE NKANATA..............................................CLAIMANT

VERSUS

BONHAM LIMITED............................................................RESPONDENT

RULING

1. The Application before Court is a Notice of Preliminary Objection dated 10th July 2017 brought on grounds that:

1. That the Claimant’s claim is hopelessly filled out of time in line with Section 90 of the Employment Act 2007 and the same should be struck out with costs to the Respondent.

2. The Claimant opposed the Preliminary Objection on grounds that:

1. The said Preliminary Objection has been instituted out of miscomprehension of the tenor of Section 90 of the Employment Act, 2007.

2. Section 90 of the Employment Act is to the effect that an Employment claim should be commenced within three years next after the act, neglect or default complained. The cause of action arose on 1st July 2014 when the Notice of Termination of the Claimant’s employment by the Respondent took effect. Accordingly, any claim arising out of that ought to have been instituted between 1st July, 2014 and 30th June 2017, well within the limitation period as provided within the law.

3. If the Respondent disputes the date that it terminated the Claimant employment, 30th June 2014, as it has averred in the Amended Statement of Response and Counterclaim, then that is an issue that ought to be determined on substantive hearing of the claim where witnesses will testify.

4. The issue of law raised, would require further investigation of facts and therefore do not stand out as adoptable point of preliminary objection. It is not apparent from the Claimant’s pleadings that the claim has been caught by limitation of action.

5. That in any case the Respondent acknowledges that it is still within time by instituting a Counterclaim which was filed on 21st July 2017 against the Claimant.

6. The Preliminary Objection is bad in law, incompetent, misconceived and an abuse of the process of the Court.

7. The Preliminary Objection ought to be dismissed with cost to the Claimant.

Submissions

3. The Respondent filed their submissions where they submit that it is trite law that Preliminary Objection be based on pure points of law. Aburili J in J. N. M vs J. N. M [2015] Eklr quoted Law JA in the case of Mukisa Biscuit Manufacturing Company Limited vs West End Distributors Limited (1969) EA 696.

4. The Claimant’s employment is alleged to have been terminated on 29th May 2014 when he stopped working for the Respondent thus the claim is time barred under the 3 year statutory limit, placed on the filling of employment claims under Section 90 of the Employment Act, 2007 as the claim was filed on 30th June 2017 which was 3 years 1 month 1 day after terminating of employment.

5. They further submit that, whenever a cause of action is statute barred, a Court has no jurisdiction to deal with the matter. They cited the case of Gathoni Vs Kenya Co-operative Creameries Ltd Civil Application No 122 of 1981 and state that the Claimant has been indolent and should not be aided by the Court at the detriment of the Respondent. Allowing the claim to be heard is prejudicial and the Court has no jurisdiction to handle this matter.

6. The Claimant filed their submissions where they submit that the Respondent cannot raise a Preliminary Objection at this stage as the fact as to when the Claimant’s employment was terminated is a disputed fact that has to be ascertained at the hearing by cross-examining both the Claimant and the Respondent’s witness on the documents they seek to rely on and therefore the Preliminary Objection ought to be dismissed as it lacks merit.

7. They further submit that by examining the Plaintiff’s Preliminary Objection in light of the principles set out in the Mukhisa and Oraro cases, it is clear that the issues raised therein are not pure points of the law, rather they are issues that need to be clarified by evidence and urge the Court to dismiss the Preliminary Objection as it lacks merits with costs to the Claimant.

8. In determining this Application, I note from the pleadings that the Claimant was terminated on 12. 6.2014. That he was served with a letter dated 29th May 2014 stating that his termination was effective on 30th June 2014.

9. The Claimant avers that he received the termination letter on 29th June 2014. It is a matter that is contested as to the exact time of termination and when the letter of termination was received by the Claimant.

10. The claim was filed on 30/6/2017 as per the Court stamp.

11. In the circumstances, this is a matter that can only be resolved with facts and evidence and falls outside strict point of law and therefore not a matter that can be determined as a Preliminary Objection.

12. In the circumstances, I dismiss this Preliminary Objection and direct that the issues raised herein be canvassed within the main claim.

13. Costs in the cause.

Dated and delivered in open Court this 31st day of May, 2018.

HON. LADY JUSTICE HELLEN WASILWA

JUDGE

In the presence of:

Chacha holding brief Ojienda for Applicant – Present

Respondent – Absent