https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5047

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT KERICHO ELRC CAUSE NO. E027 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) WELLINGTON KIPRONO KIRUI……………………..CLAIMANT VERSUS KISII UNIVERSITY………………...………………… RESPONDENT Introduction RULING 1. The Respondent filed a notice of preliminary objection dated 16th June 2026 on the following grounds that: a. This instant claim is barred and/or contrary to section 90 of the Employment Act Chapter 226 Laws of Kenya. b. The instant claim does not disclose and/or capture any reasonable cause of action. c. The instant claim is legally untenable d. The instant claim amounts to and/or constitutes an abuse of the due process of court. KRC ELRC CAUSE NO. E027 OF 2025 RULING PAGE 1 OF 9 e. The Claimant herein is a busybody and hence is non-suited. 2. Parties canvassed the notice of preliminary objection by way of written submissions. Respondent’s submissions 3. The Respondent submitted that the Claimant’s suit is fatally defective, time-barred, and procedurally irregular. The Respondent argued that under section 90 of the Employment Act 2007, employment-related claims must be filed within three years of the cause of action or within twelve months for continuing injury, a limitation period that is strict and non-extendable. 4. In the cases of G4S Security Services (K) Limited v Joseph Kamau & 468 Others [2018] KECA 827 (KLR), Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] KECA 257 (KLR), Maweu v Safaricom Ltd [2025] KEELRC 1441 (KLR), and Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another [2016] KECA 213 (KLR), the Respondent emphasizes that unpaid terminal dues do not amount to a continuing injury and that limitation laws protect employers from indolent claims. KRC ELRC CAUSE NO. E027 OF 2025 RULING PAGE 2 OF 9 5. The Respondent further contended that the Claimant’s reliance on Article 41 of the Constitution is misplaced, as the matter does not raise a constitutional question supported by the cases of Motende v Teachers Service Commission & another [2023] KEELRC 3033 (KLR) and Turkana County Government & 20 others v Attorney General & another; Professionals & 3 Others [2016] KEHC 8122 (KLR) since statutory violations cannot give rise to constitutional claims. 6. In conclusion, the Respondent maintains that the statement of claim filed on 1st December 2025 is legally untenable, constitutes an abuse of the court process, and should be dismissed with costs. Claimant’s submissions 7. The Claimant submitted that the Respondent’s Preliminary Objection is fatally defective both in threshold and substance. A proper preliminary objection must raise a pure point of law, as settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and reaffirmed in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR). The court has consistently applied that strict approach, most recently in Kipchirchir v Arati, Governor Kisii KRC ELRC CAUSE NO. E027 OF 2025 RULING PAGE 3 OF 9 County & 2 others [2025] KEELRC 3235 (KLR), where it declined an objection requiring factual interrogation. Save for limitation, the other grounds pleaded abuse of process, lack of cause of action, or that the Claimant is a busybody are bare conclusions that invite the Court to assess merits, which is impermissible at the preliminary stage. 8. Even the limitation limb fails, the Claimant submitted that the Respondent has not particularised accrual dates or sums, while the Claimant relies on written acknowledgement letters dated 11th February 2025, accepted on 18th February 2025, which retrospectively confirmed teaching arrears. Under section 89 of the Employment Act, read together with section 31 of the Limitation of Actions Act, and incorporating sections 23(3) and 24, such written acknowledgement triggers fresh accrual of the right of action. Whether those letters bear the legal character of acknowledgement is an evidential matter, not a pure point of law. 9. As affirmed in Mutiva v Technical University of Kenya [2025] KEELRC 1193 (KLR), the Claimant submitted that written admission of arrears revives otherwise time-barred claims. Accordingly, the earlier arrears accrued afresh from acknowledgement, while KRC ELRC CAUSE NO. E027 OF 2025 RULING PAGE 4 OF 9 later arrears were already within time. The preliminary objection therefore fails both procedurally and substantively, and the Claimant prays it be dismissed with costs so the matter may proceed to full hearing. Analysis and determination 10.The court has considered the notice of preliminary objection together with the submissions on record; the issue for determination is whether the Claimant’s Memorandum of claim is time barred. 11.In Joho & Another v Shahbal & 2 Others (Supra) the court cited the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd(supra) where the court stated as follows: “A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.. ..a preliminary objection is in the nature of what used to be a demurrer. It KRC ELRC CAUSE NO. E027 OF 2025 RULING PAGE 5 OF 9 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.” 12. In the Supreme Court case of Independent Electoral & Boundaries Commission v Cheperenger & 2 Others [2015] KESC 2 (KLR), the court held as follows: “A true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection, against profligate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword for winning a case otherwise destined to be resolved judicially, and on the merits.” 13. Section 89 of the Employment Act provides as follows: “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 KRC ELRC CAUSE NO. E027 OF 2025 RULING PAGE 6 OF 9 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.” 14. In the instant case, the Claimant, through his Statement of Claim dated 1st December 2025, sought payment of terminal dues allegedly accruing between 2019 and 2024, amounting to Kshs.815,000/=. The Respondent, however, contended that the claim was statute-barred, urging that the limitation period for pursuing such dues ought to be confined within three years as prescribed under Section 89 of the Employment Act, 2007, and therefore the Claimant’s demand was filed outside the permissible statutory window. 15. Upon perusing the documents, the Claimant presented documents showing he was appointed as a Lecturer(retroactively) and thus the University closed and his employment terminated in 11th February 2025 and the claim was filed in December 2025 which is within the time frame of the three years as set out in Section 89 of the Employment Act. KRC ELRC CAUSE NO. E027 OF 2025 RULING PAGE 7 OF 9 16. The court is persuaded the issue here needs to be litigated as to when the time began to run so as to justify the defence of time bar. That therefore cannot be a pure point of law and is reasonable to proceed to full hearing to determine the facts and evidence raised herein and the varying dates of the alleged owed salary spanning 2019 to 2024. 17. The court having considered the application and respective submissions and applicable law finds that the Preliminary objection dated 16th June 2026 lacks merit and it is therefore dismissed. The case should proceed for full hearing. 18. Each party to bear its own costs. Order accordingly. Dated, Signed and Delivered virtually at Nakuru this 31st Day of July, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of KRC ELRC CAUSE NO. E027 OF 2025 RULING PAGE 8 OF 9 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE KRC ELRC CAUSE NO. E027 OF 2025 RULING PAGE 9 OF 9