https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2022

Gona v Coast Development Authority (Employment and Labour Relations Cause E091 of 2025) [2026] KEELRC 2022 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 2022 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Employment and Labour Relations Cause E091 of 2025 K Ocharo, J June 25, 2026 Between William Fondo Gona Claimant and Coast Development Authority Respondent Ruling A. Introduction 1.By a Notice of Preliminary Objection dated 1st October 2025, filed on behalf of the Respondent, Coast Development Authority (the Respondent), the Respondent raises a point of law touching on the jurisdiction of this Court to entertain the Claimant's suit, on the footing that the same is statute-barred under Section 89 of the Employment Act, Cap. 226 Laws of Kenya (formerly Section 90). The Claimant, William Fondo Gona, opposes the objection in its entirety. 2.The objection was canvassed by way of written submissions. The Respondent filed its Submissions in Support of the Preliminary Objection on 31st October 2025, while the Claimant filed his Submissions in Opposition to the Preliminary Objection on 25th January 2026. I have carefully considered the Memorandum of Claim, the Notice of Preliminary Objection, the rival submissions, and the authorities relied upon by both parties, and now render my Ruling. B. The Claimant's Case As Pleaded 3.Before addressing the objection, it is necessary to restate, in outline, the cause as it emerges from the Claimant's Statement of Claim, since a preliminary objection falls to be tested against the facts as pleaded by the party against whom it is taken. See Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 4.The Claimant states that he commenced employment with the Respondent in 2011 andserved for a duration of more than thirteen years, advancing from the role of Manager, Engineering Services, to Deputy Director, Natural Resources Management. He maintained this position with distinction until his retirement on 3rd September 2024. 5.It is the Claimant's case that vide a letter dated 10th June 2011, the Respondent placed him on salary scale “CDA 3” (Kshs. 118,736 x 10,000 – 158,736), with a starting salary of Kshs. 118,736.00 per month, and an annual increment of Kshs. 10,000.00, which would, on his own computation, have progressively raised his salary to the ceiling of Kshs. 158,736.00 by the year 2015. He contends that this arrangement formed a binding term of his contract of service and was not a matter of administrative discretion. 6.The Claimant pleads that from the end of July 2012 the Respondent ceased to award the agreed increments, such that his salary remained stagnant at Kshs. 118,736.00 notwithstanding the passage of over a decade, and that this omission constitutes a breach of contract giving rise to accrued and unpaid increments, which he quantifies, variously, at Kshs. 2,840,000.00. 7.The Claimant further pleads that the Respondent sought to justify the non-payment by reference to the want of approval of the increment by the now-defunct Permanent Public Service Remuneration Review Board, a position communicated, according to the Claimant, vide a letter dated 23rd December 2019, by which letter the Respondent also purported to restructure his salary downwards, resulting in an underpayment which he quantifies at Kshs. 620,496.00. He avers that he protested this position by a letter dated 13th January 2020, to which the Respondent did not respond. 8.On this factual foundation, the Claimant pleads breach of contract, violation of the doctrine of legitimate expectation, unfair labour practice contrary to Article 41 of the Constitution and Sections 10, 13 and 45 of the Employment Act, and estoppel, and prays, among other reliefs, for payment of Kshs. 2,840,000.00, Kshs. 620,496.00 and Kshs. 81,000.00, general damages, interest, and costs. C. The Preliminary Objection 9.The Respondent's Notice of Preliminary Objection dated 1st October 2025 is founded on three grounds, namely:-“1.That suit is statute barred on account of the provisions of Section 89 of the Employment Act Cap 226 Laws of Kenya.2.That this Honourable Court is without jurisdiction on account of Limitation of time, the cause of action having accrued as of July 2012.3.That the Suit is incompetent, bad in law, misconceived and otherwise an abuse of the court process and should be dismissed in the first instance.” D. The Respondent's Submissions In Support Of The Objection 10.In support of the objection, the Respondent relies on Section 89 of the Employment Act, which provides—“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), 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.” 11.Counsel for the Respondent submits, on a two-pronged approach, that the suit is barred whichever way it is looked at: first, that the cause of action arising from the letter of 2019 crystallised on the date of that letter, such that the three-year period expired well before the suit was filed; and second, that even treating the complaint as one of continuing injury, the twelve-month period ran from the Claimant's retirement on 3rd September 2024 and had lapsed before the suit was instituted. Reliance is placed on Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR), where the Court of Appeal held— “Time limits in the former Act were subject to the Limitation of Actions Act which in some cases could be as long as 12 years and amenable to extension. By expressly inserting Section 90, the intention of Parliament, in my view, at least in part, must have been to protect both the employer and the employee from irredeemable prejudice if they have to meet claims and counterclaims made long after the cause of action had arisen when memories have faded, documents lost, witnesses dead or untraceable. It is understandable therefore when the section peremptorily limits actions by the use of the word 'shall'.” 12.Further reliance is placed on Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another [2016] KECA 213 (KLR), where the Court of Appeal, citing with approval Divecon v Samani (1995–1998) 1 EA 48, held that no court has power to extend a statutory limitation period absent express provision for extension, and further held—“For us it is clear from our reading of section 90 aforesaid that there are no exceptions to the three-year limitation period, save for cases of continuing injury or damage where action or proceedings must be brought within twelve months after the cessation thereof.” 13.On the definition of continuing injury, the Respondent cites The German School Society& Another v Ohany & Another [2023] KECA 894 (KLR), at paragraph 33—“...the above provision in peremptory terms bars civil actions or proceedings based or arising out of the Employment Act unless the same is commenced within three years next after the act, neglect or default complained of. However, where there is a continuing injury or damage, the action must be brought within twelve months after the cessation thereof. ... The underlying purpose of statutes of limitation is to prevent the unexpected enforcement of stale claims concerning which persons interested have been thrown on their guard by want of prosecution.” 14.On the competence of a preliminary objection to dispose of an entire suit, the Respondent cites Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra) and Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, urging that this Court, having found itself without jurisdiction, should “down its tools.” The Respondent prays that the objection be upheld, the suit dismissed in limine, with costs to the Respondent. E. The Claimant's Submissions In Opposition 15.The Claimant opposes the objection on essentially five grounds. First, that the objection is incompetent because it turns on disputed questions of fact, when the cause of action accrued, whether the injury was continuing, and when it ceased, matters said to require evidentiary examination and thus said to fall outside the proper ambit of a preliminary objection, relying again on Mukisa Biscuit (supra). 16.Second, that the cause of action did not crystallise in 2019 but rather upon “final settlement” of his terminal dues, which he places on 3rd October 2024 (issuance of dues) or 28th October 2024 (completion of clearance), such that the suit, filed on 10th September 2025, falls within the applicable period. For this proposition, he relies on Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] eKLR. 17.Third, that in any event the claim discloses a continuing injury — persistent monthly underpayment of salary — which, he submits, ceases only when the contract or employment terminates, and that, computed from the completion of clearance in October 2024, the filing on 10th September 2025 remains within the twelve-month window. For this proposition he too relies on The German School Society v Ohany (supra), quoting the passage that— “It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury... A continuing injury is one that persists from day to day and only ceases when the contract or employment terminates.” 18.Fourth, that the Respondent's authorities are distinguishable in that they concerned termination of employment and not continuing salary underpayment. Fifth, that jurisdiction may only be ousted where limitation is plain and uncontested on the face of the record, and that Owners of Motor Vessel “Lilian S” (supra) is therefore inapplicable. The Claimant prays that the objection be dismissed with costs and the suit be permitted to proceed to trial on its merits. F. Issues For Determination 19.Arising from the foregoing, three issues fall for determination, namely:-i.Whether the Preliminary Objection is competent, properly raised, and was properly and timeously taken;ii.Whether, on the facts as pleaded by the Claimant, the suit, or any part of it, is time barred under Section 89 of the Employment Act; and (iii) What order should issue. G. Analysis And Determination Competence and propriety of the Preliminary Objection 20.It is now settled law, since Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra), that “a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which, if argued as a preliminary point, may dispose of the suit,” and that it “cannot be raised if any fact has to be ascertained.” The Claimant contends that the present objection offends this rule in that it requires the Court to resolve disputed questions as to when the cause of action accrued and whether the alleged injury was continuing. 21.I do not agree. The dates upon which the objection turns, the letter of 10th June 2011, the cessation of increments from July 2012, the letter of 23rd December 2019, the Claimant's retirement on 3rd September 2024, and the filing of the suit on 10th September 2025, are not matters requiring evidence to “ascertain”; they are dates pleaded by the Claimant himself in his own Statement of Claim and borne out by the record of the Court. What is truly in contest is not the primary facts but the legal characterisation and consequence of those admitted facts for purposes of limitation, a question pre-eminently of law. Indeed, a plea of limitation is itself one of the examples given in Mukisa Biscuit of a proper preliminary point (“an objection to the jurisdiction of the court, or a plea of limitation...”). The objection is accordingly competently raised. 22.As to whether it was properly and timeously taken, it is trite that an objection touching on the jurisdiction of the Court, of which a plea of limitation is one species, ought to be raised and disposed of at the earliest opportunity, before the parties are put to the expense and delay of a full trial on the merits. This principle traces to Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where Nyarangi JA held—“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 20.That principle has since been restated, including in Jane Njeri James v Kenya Commercial Bank Limited & another [2021] eKLR, in the following terms:“[A] question of jurisdiction ought to be raised at the earliest opportunity, and the court seized of the matter is then obliged to decide the issue right away on the material before it.” 24. Applying that principle here, the Respondent was served with the Memorandum of Claim filed on 10th September 2025 and, within three weeks, on 1st October 2025, filed its Notice of Preliminary Objection challenging the jurisdiction of this Court on grounds of limitation, well before the matter proceeded to hearing on the merits or the taking of evidence, and, a fortiori, before the Claimant had testified. The objection was therefore raised at the earliest opportunity available to the Respondent, precisely as the law contemplates. It is properly taken, and I so find. I accordingly proceed to determine it on its merits. Whether the claim for Kshs. 2,840,000.00 (increment arrears) is time-barred 25.The Claimant's own pleaded case is instructive. At paragraph 7 of the Statement of Claim, he avers that “from the end of the month of July, 2012, the Respondent failed to implement the agreed basic salary increments, thereby breaching a material term of the contract,” and that “this is the breach that has resulted to the accrued salary increment in the sum of Kshs. 2,840,000.00.” On the Claimant's own case, therefore, the “act, neglect or default complained of,” within the meaning of Section 89 of the Employment Act, occurred at the end of July 2012, when the Respondent first withheld the increment said to be due under the letter of 10th June 2011 — a letter which, according to the Claimant, bore contractual effect and which the Respondent thereby breached. Time, for purposes of the three-year limitation period, began to run from that date and lapsed at the end of July 2015. 26. Even were this Court to adopt, for the sake of argument, the position that the Respondent's letter of 23rd December 2019 — in which the Respondent acknowledged the existence of the letter of 10th June 2011 and its claimed contractual effect, while unjustifiably declining to be bound by it — operated to restate or revive the Claimant's cause of action in respect of the increment, the three-year period computed from that later date would still have lapsed on 23rd December 2022, well before the suit was filed on 10th September 2025. 27.Nor is the position improved by treating the non-payment of monthly increments as a continuing injury. Even on that characterisation, Section 89 affords only twelve months from the cessation of the injury. The alleged continuing withholding of the increment could not, by its nature, continue beyond the life of the employment relationship itself; it necessarily ceased, at the very latest, upon the Claimant's retirement on 3rd September 2024. Twelve months from that date lapsed on 3rd September 2025. The suit was filed on 10th September 2025 — seven days after the expiry of that period — and is, even on this construction most favourable to the Claimant, out of time. 28.I am fortified in this view by the Court of Appeal's exposition of continuing injury in The German School Society & Another v Ohany & Another (supra), which draws a distinction between the wrongful act and the effect of the injury it causes—“If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong.” 27.Applying that distinction, the injury here- non-award of a monthly increment- was, on the Claimant's own theory, one that could persist only for so long as the employment relationship, and the monthly salary payable under it, subsisted. It could not and did not survive the termination of that relationship through retirement. Whichever of the three approaches is applied, accrual in July 2012, accrual in December 2019, or treatment as a continuing injury ceasing upon retirement in September 2024, the claim for Kshs.2,840,000.00 is time-barred under Section 89 of the Employment Act. Whether the claim for Kshs. 620,496.00 is time-barred 30.The Claimant pleads, at paragraph 16 of the Statement of Claim, that “vide a letter dated 23rd December, 2019, the Respondent purported to restructure the Claimant's salary, downwards resulting to an underpayment of Kshs. 620,496.00.” (I note that the Respondent's own submissions refer, apparently in error, to this same letter as dated 23rd September 2019; nothing turns on the discrepancy, since the result is identical whichever of the two dates is applied.) 31.On the Claimant's own pleading, the act complained of in respect of this head of claim is a discrete, identifiable and completed act: the issuance of a letter restructuring his salary downwards, and not a state of affairs recurring thereafter in the sense contemplated by “continuing injury.” The Claimant confirms as much by his own conduct: he protested the restructuring by a letter dated 13th January 2020, barely three weeks later, demonstrating that he had actual and immediate knowledge of the alleged wrong at that time. The cause of action in respect of this claim therefore arose, and time began to run, in December 2019. The three-year period prescribed by Section 89 lapsed on 23rd December 2022. The suit, filed on 10th September 2025, some two years and nine months later, is accordingly time barred in respect of this claim as well. I so find and hold that the cause of action for the sum of Kshs. 620,496.00 arose in 2019, and not, as urged by the Claimant, upon settlement of his terminal dues in October 2024. The Claimant's “final settlement” argument 32.The Claimant urges that neither claim is time-barred because the true cause of action only “crystallised” upon settlement of his terminal dues in October 2024, since it was only then that the omission of the disputed sums became “final and irreversible.” I am unable to accept this submission. The alleged breaches relied upon- non-implementation of the increment from July 2012, and the restructuring letter of December 2019- were each definite and complete acts of which the Claimant had actual knowledge well before his retirement, as his own protest letter of January 2020 demonstrates. The process of clearance and computation of terminal benefits following retirement is a distinct administrative exercise; it does not operate to reset or postpone the accrual of a cause of action founded on breaches that had already crystallised, and were already known to the Claimant, years earlier. To hold otherwise would be to render Section 89 nugatory in every case involving a retired employee, since terminal dues are, almost invariably, computed and settled after the cessation of service, a result Parliament cannot have intended in enacting a provision which the Court of Appeal has repeatedly emphasised is peremptory and admits no judicially-created exception beyond the one expressly provided for continuing injury. To the extent that Beatrice Kahai Adagala v Postal Corporation of Kenya (supra) is cited for a broader proposition, it is, in any event, a decision of a court of concurrent jurisdiction which does not bind this Court, and cannot displace the binding pronouncements of the Court of Appeal on the mandatory character of Section 89 relied upon by the Respondent. I decline to follow it to the extent that it would yield a result inconsistent with those binding authorities. 33.It follows, and I so find, that from whichever angle the Claimant's claim is examined, whether by reference to the date the increment was first withheld in July 2012, the date of the letter of December 2019, or the date of the Claimant's retirement in September 2024 treated as the terminus of any continuing injury, the suit as filed on 10th September 2025 was filed out of time, contrary to Section 89 of the Employment Act. H. Disposition 34.For the foregoing reasons, I find that the Notice of Preliminary Objection dated 1st October 2025 is competently and properly before this Court, was timeously raised, and is merited. The Claimant's suit is statute-barred under Section 89 of the Employment Act, Cap. 226 Laws of Kenya. 35.Accordingly, I make the following orders—a.The Respondent's Notice of Preliminary Objection dated 1st October 2025 is hereby upheld.b.The Claimant's suit herein is struck out and dismissed in limine, for being time-barred.c.The Claimant shall bear the Respondent's costs of the suit and of this objection. 36.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF JUNE, 2026.OCHARO KEBIRAJUDGE