[2018] KEELRC 1892 (KLR)
The court found that the respondent's preliminary objection did not raise a pure point of law but instead contested factual matters that should have been addressed in a memorandum of response. Citing the Mukisa Biscuit case, the court held that such misuse of preliminary objections constitutes an abuse of court...
Source-derived case information.
- Citation
- [2018] KEELRC 1892 (KLR)
- Parties
- Claimant: Hilda Muthoni; Respondent: Leading Edge Food & Entertainment Limited t/a John & Jo’s Restaurant
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2157 of 2015
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; suit to proceed to formal proof
- Judges
- MN Nduma, DO Ogal
- Legal Topics
- Unfair Termination, Preliminary Objection, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hilda Muthoni
Claimant
Leading Edge Food & Entertainment Limited t/a John & Jo’s Restaurant
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raised by the respondent is properly before the court as a pure point of law.
- 2 Whether the preliminary objection improperly raises factual contestations that should be addressed in a memorandum of response.
- 3 Whether the preliminary objection should be dismissed with costs.
Ratio Decidendi
The court found that the respondent's preliminary objection did not raise a pure point of law but instead contested factual matters that should have been addressed in a memorandum of response. Citing the Mukisa Biscuit case, the court held that such misuse of preliminary objections constitutes an abuse of court process, leads to unnecessary delays, and increases costs. Consequently, the preliminary objection was dismissed with costs, and the suit was deemed undefended, to proceed to formal proof on a priority basis.
Court Disposition
preliminary objection dismissed; suit to proceed to formal proof
Orders
- The preliminary objection is dismissed with costs to the claimant.
- Costs to be taxed and paid on all proceedings related to the preliminary objection.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO. 2157 OF 2015
(BEFORE HON. JUSTICE MATHEWS N. NDUMA)
HILDA MUTHONI.......................................................CLAIMANT
VERSUS
LEADING EDGE FOOD & ENTERTAINMENT
LIMITED t/a JOHN & JO’S RESTAURANT.......RESPONDENT
R U L I N G
1. The suit was brought vide a Memorandum of Claim dated 20th November, 2015 seeking a declaration that termination of employment was unfair and unlawful and payment of terminal benefits set out in the Memorandum of Claim including:-
i. One month salary in lieu of notice.
ii. Underpayments from 1st December 2010 to 4th August, 2015.
iii. Grant of Certificate of Service, and
iv. Costs of the suit.
2. The Respondent did not file a Memorandum of Response to theClaim but has instead filed preliminary objection to the proceeding of the suit which in brief attacks the factual basis of the suit and that the reliefs sought are misconceived and ought not to be paid.
3. The High Court in Mukisa Biscuit Company vs West end Distributors Limited (1969) EA 696 at page 701 stated as follows:-
“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 has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and on occasion confuse the issues. This improper practice should be stopped.”
4. This is a classical case where the court process has been abused by raising factual contestations by way of a preliminary objection instead of filing a memorandum of response to the suit. This has led to filing of lengthy submissions and authorities and delay in hearing and determination of this suit on the merits. The case was filed on 4th December, 2015 and over two years later, we are dealing with completely misconceived preliminary objection. This practice must stop. To discourage it, the preliminary objection is dismissed with costs to be taxed and paid on all proceedings related to the preliminary objection.
5. The Respondent has not filed any response to the suit, the court deems the suit as undefended thus far and directs the same proceed to formal proof on priority basis. The Principal Judge to give directions accordingly.
Dated and Signed in Kisumu this 2nd day of May, 2018
Mathews N. Nduma
Judge
Delivered and signed in Nairobi this 30th day of May, 2018
Maureen Onyango
Judge
Appearances
M/s. Wairimu & Co. Advocates for Respondent
Mr. Ombeta & Co. Advocates for Claimant
Anne Njung’e – Court Clerk