[2014] KEELRC 1437 (KLR)
The court found that the preliminary objection on limitation did not properly arise from the pleadings, as neither party had pleaded the exact date of termination or separation, and the objection relied on documents outside the primary pleadings. The Statement of Claim was found to be poorly drafted and...
Source-derived case information.
- Citation
- [2014] KEELRC 1437 (KLR)
- Parties
- Applicant: Ibrahim Ratemo Magomga; Respondent: Eldoret Grains Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 51 of 2014
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- Claimant granted leave to amend Statement of Claim; costs of preliminary objection awarded to Respondent.
- Judges
- MSA Makhandia
- Legal Topics
- Limitation Periods, Unlawful Termination, Pleadings Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Ratemo Magomga
Applicant
Eldoret Grains Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is time barred under section 90 of the Employment Act, 2007.
- 2 Whether the preliminary objection on limitation is properly raised based on the pleadings.
- 3 Whether the Statement of Claim is compliant with procedural rules.
Ratio Decidendi
The court found that the preliminary objection on limitation did not properly arise from the pleadings, as neither party had pleaded the exact date of termination or separation, and the objection relied on documents outside the primary pleadings. The Statement of Claim was found to be poorly drafted and non-compliant with procedural rules, particularly for failing to specify the date of termination. However, the court exercised discretion to allow the Claimant an opportunity to amend the Statement of Claim to cure the defects, rather than striking out the claim outright. The court emphasized the importance of pleadings in setting out the facts constituting the cause of action and held...
Court Disposition
Claimant granted leave to amend Statement of Claim; costs of preliminary objection awarded to Respondent.
Orders
- Claimant to file and serve an Amended Statement of Claim on or before 20 November 2014 or the Cause to stand struck out.
- Costs of Kshs 6,000/- awarded to the Respondent to be paid before 20 November 2014.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAKURU
CAUSE NO. 51 OF 2014
IBRAHIM RATEMO MAGOMGA....................................CLAIMANT
v
ELDORET GRAINS LTD.................................................RESPONDENT
RULING
The Claimant sued the Respondent on 5 March 2014 alleging unlawful termination and seeking a total of Kshs 1,920,000/- as benefits/dues. The Respondent filed a Response on 25 March 2014.
On 22 October 2014, the Respondent filed a Notice of Preliminary Objection to the effect that
this claim is time barred and offends the provisions of Section 90 of the Employment Act, 2007. The objection was taken on the same day.
Respondent’s submissions
The Respondent submitted that the cause of action was time barred as it offends section 90 of the Employment Act, 2007 because the Claimant pleaded that he worked until 2011.
It was further submitted that the firm of Sirma & Co. Advocates wrote a demand letter on behalf of the Claimant to the Respondent on 22 October 2010, stating that the Claimant had been terminated in July 2010. A similar letter was written by Nyairo & Co. Advocates on 18 July 2013.
The Respondent cited Petition No. 1 of 2013 Josephat Ndirangu v Henkel Chemicals (EA) Ltd.
Claimant’s submissions
The Claimant confirmed that it was pleaded that the Claimant was terminated in 2011, but submitted that the Respondent had not pleaded limitation.
It was also submitted that there was a dispute as to the date of termination and this was an issue of evidence and not proper for determination as a preliminary objection. The preliminary objection, it was urged did not flow out of the pleadings.
The Claimant further submitted that the cause of action arose upon the refusal of the Respondent to reply to the demand letter and that it was in the interest of justice to determine the suit on the merits.
The Claimant cited Henry Wanyama Khaemba v Standard Chartered Bank (K) Ltd & another (2014) eKLR and Janet Syokau Kaswii v Kathonzweni Financial Service Association(2014) eKLR.
Evaluation
The nature of a preliminary objection was clearly set out in the case of Mukisa Biscuit Company v Westend Distributors Ltd (1969) EA 696 and I need not recite it here.
The instant objection relies on various documents which were not referred to in the primary pleadings. The Claimant did not plead the exact date of termination. Equally, the Respondent did not plead the exact date of separation. The preliminary objection does not flow from the pleadings.
The Statement of Claim herein was poorly drafted. In Constitutional Petitions No. 373,426 of 2012, Stephen Waweru Wanjohi & Others v Attorney General & Others and Kipngetich Maiyo & Others v the Kenya National Land Commission Selection Panel & Others,Majanja J observed that
the key purpose of pleadings is to set out facts which constitute a cause of action.
The Claimant must be taken to know the facts which constitute his cause of action. The date when he was allegedly terminated must be known to him. And that date cannot be until 2011 as pleaded.
Further, the Industrial Court (Procedure) Rules, 2010 are very clear on the content of pleadings. The Statement of Claim does not comply with the rules.
Although the Civil Procedure Rules require a party to plead limitation, being a point of law, the issue of limitation though not pleaded may be raised at any time but promptly provided that no prejudice or injustice will be occasioned to the other party.
I would have therefore dismissed the Statement of Claim for being frivolous but the Claimant should be given another chance. The defects can be cured through appropriate amendments.
Conclusion and Orders
In order to do justice to the parties, the Court orders as follows
Claimant to file and serve an Amended Statement of Claim clearly setting out the facts constituting the cause of action on or before 20 November 2014 or the Cause to stand struck out.
Costs of the preliminary objection are awarded to the Respondent in the sum of Kshs 6,000/- to be paid before 20 November 2014.
The Cause be mentioned on 21 November 2014 to confirm compliance and for further directions
Delivered, dated and signed in open Court in Nakuru on this 14th day of November 2014.
Radido Stephen
Judge
Appearances
For Claimant Mr. Makuto instructed by Nyairo & Co. Advocates
For Respondent Mr. Kitiwa instructed by Kitiwa & Co. Advocates