https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2074

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E907 OF 2023** *(Before Hon. Lady Justice Agnes Kitiku Nzei)* **KENYA ENGINEERING WORKERS UNION CLAIMANT** *VERSUS* **MULTI TOOLS LIMITED ..RESPONDENT** **RULING** 1. The Claimant Trade Union sued the Respondent herein vide a Memorandum of Claim dated 27th October, 2023 and shown to have been filed in Court on 11th August, 2023. The Claimant claims payment of compensation and terminal dues for one **Omumbwa Munayi (the grievant herein)** whom the Claimant alleges was their member. The Claimant pleads that the grievant’s employment was wrongfully, unfairly and unprocedurally terminated by the Respondent on **13th November, 2017**. 2. The suit is defended by the Respondent vide a Memorandum of Reply **dated 1st December, 2025**. The Respondent filed an evenly dated Notice of Preliminary Objection on points of law, calling for the Claimant’s suit herein to be struck off on grounds:- 3. *That there exists no employer-employee relationship between the Claimant and the Respondent, thereby ousting this Court’s Jurisdiction under* ***Article 162(2)(a) of the Constitution of Kenya*** *and* ***Section 12 of the Employment and Labour Relations Court Act****.* 4. *That no recognition agreement exists between the Claimant and the Respondent as required under* ***Section 54 of the Labour Relations Act, 2007****, hence no employer-trade union relationship exists in law; and the Claimant lacks* ***locus standi*** *to institute and maintain the suit herein.* 5. *That the claim is fatally defective and incompetent* ***ab initio*** *and ought to be struck off with costs to the Respondent.* 6. The foregoing grounds of Preliminary Objection are also pleaded in the Respondent’s Memorandum of Reply. 7. Before delving into the foregoing grounds of Preliminary Objection, I must address **a glaring and foundational matter of law** which I have noted from the Claimant’s pleadings herein. Whereas the Claimant pleads that the grievant’s employment **was unfairly terminated on 13th November, 2017**, the suit herein, which challenges **the legality and fairness** of the said termination, was **not** filed in Court until **11th August, 2023**, over five (5) years down the line. 8. **Section 89 (formerly Section 90) of the Employment Act** provides as follows:- ***“Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, 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.”*** 1. The foregoing provision of the statute is couched in **mandatory** terms. The suit herein was clearly filed **outside** the said statutory limitation period of three (3) years. The suit is statute-barred and cannot be entertained by this Court. It must fall by the wayside; as this Court has no Jurisdiction to entertain a statute-barred suit. The Supreme Court of Kenya stated as follows in the case of **Samuel Kamau Macharia & Another – vs – Kenya Commercial Bank Limited & 2 Others [2012] eKLR:-** ***“. . . A Court’s Jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise Jurisdiction as conferred by the Constitution or other written law, and cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law . . . whether a court of law has jurisdiction to entertain a matter before it . . . goes to the very heart of the matter, for without Jurisdiction, the Court cannot entertain any proceedings.”*** 1. Having made that finding, I will not delve into the grounds of Preliminary Objection raised by the Respondent, as doing so will be a mere academic exercise and a waste of precious Judicial time. 2. Consequently, the Claimant’s suit herein is hereby struck off. Each party will bear its own costs of the suit. 3. It is so ordered. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS** **10TH DAY OF JULY 2026** **AGNES KITIKU NZEI** **JUDGE** **ORDER** This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. **AGNES KITIKU NZEI** **JUDGE** Appearance: Mr. Patrick Makale for the Claimant Mr. Kirwa for the Respondent