https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2036

Mburu v Coast Development Authority (Employment and Labour Relations Cause E090 of 2025) [2026] KEELRC 2036 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 2036 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Employment and Labour Relations Cause E090 of 2025 K Ocharo, J June 25, 2026 Between John Wainaina Mburu Claimant and Coast Development Authority Respondent (On the Respondent's Notice of Preliminary Objection dated 1st October 2025) 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. 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. Despite the timelines given by the Court for the filing of written submissions in these proceedings, the Claimant did not file any submissions, whether in opposition to the objection or at all. I have carefully considered the Memorandum of Claim, the Notice of Preliminary Objection, the Respondent’s submissions and the authorities relied upon therein, and now render my Ruling. B. The Claimant's Case As Pleaded 3.Prior to addressing the objection, it is essential to restate, in outline, the cause as derived from the Claimant’s Memorandum of Claim, since a preliminary objection must be evaluated against the facts as pleaded by the party against whom it is raised. See Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 4.The Claimant avers that he joined the Respondent’s service in 1993 as a Civil Engineer, seconded to the Authority under the then Ministry of Regional Development and later the Ministry of Land Reclamation, Regional and Water Development, and that he served for over thirty (30) years, rising through the ranks to the position of Deputy Director, Coast Region, a position he held from 2010 until his retirement on 30th December 2024. 5.It is the Claimant’s case that vide a letter dated 24th August 2011, the Respondent formally notified him that he had been placed on salary scale “CDA 3” (Kshs. 118,736.00 x 10,000.00 – 158,736.00), with a starting salary of Kshs. 118,736.00 per month and structured annual increments of Kshs. 10,000.00 effective August 2012, Kshs. 20,000.00 effective August 2013 and Kshs. 30,000.00 effective August 2014, with further increments thereafter. He contends, at paragraph 18 of the Memorandum of Claim, that the Respondent is bound by this communication, which he asserts had contractual effect and was not a matter of administrative discretion. 6.The Claimant pleads, at paragraph 7 of the Memorandum of Claim, that he had a legitimate expectation that these contractual terms would be honoured, but that the Respondent “failed to implement the increments, resulting in unpaid salary arrears amounting to Kshs. 3,394,067.00 as at November, 2019.” 7.The Claimant further pleads, at paragraph 9 of the Memorandum of Claim, that in December 2019, vide a letter dated 23rd December 2019, the Respondent “wanted to impose the new changes to the Claimant’s salary which purported to restructure the employment contract by scrapping of the earlier annual increment” set out in the letter of 24th August 2011, substituting in its place an annual increment of 3% on a pro-rata basis. He avers that he was required to sign the new terms without negotiation or discussion, that he declined to do so, and that his salary for December 2019 and January 2020 was consequently withheld and only released on 25th February 2020. 8.The Claimant additionally pleads that he was subjected to further adverse treatment, including a letter of show cause dated 17th March 2020 and another dated 14th February 2020, which he characterises as harassment, and that he was thereafter transferred to the parent Ministry in Nairobi, where he served until his retirement on 30th December 2024. He avers that following a demand letter issued by his advocates on 27th January 2025, the Respondent substantively responded on 24th July 2025, enclosing an Attorney General’s advisory opinion tabulating his dues, on the 3% increment basis, at Kshs. 327,531.00 — a figure he disputes as erroneous, contending that the correct sum, properly calculated and inclusive of the employer’s 15% pension contribution, is Kshs. 1,680,945.25 (given elsewhere in the same pleading, including in the prayers, as Kshs. 1,680,945.27; nothing turns on this minor discrepancy for present purposes). 9.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 a declaration of breach of contract and unfair labour practice, payment of Kshs. 3,394,067.00, payment of the alternative sum of Kshs. 1,680,945.27, general damages, interest and costs. C. The Preliminary Objection 10.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 11.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.” 12.Counsel for the Respondent submits that, at paragraph 9 of the Statement of Claim, the Claimant alleges that his terms of service were restructured vide the letter dated 23rd December 2019, and that this is the date on which his cause of action, founded on breach of contract, crystallised. The Respondent anchors this submission on the Claimant’s own statement, cited in the Respondent’s submissions, that “… substantial salary arrears accrued, which I have calculated at Kshs. 3,394,067.00 as at November 2019,” a statement said to confirm that the Claimant advances no claim for any period after November 2019, and that the suit ought accordingly to have been filed by 23rd December 2022. 13.The Respondent relies on Attorney General & another v Andrew Maina Githinji &another [2016] KECA 817 (KLR), where the Court of Appeal held that Section 89 (formerly Section 90) of the Employment Act is peremptory and admits no judicially-created extension—“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’.” 14.The Respondent further submits that the Claimant’s attempt, at paragraphs 10 and 11 of the Memorandum of Claim, to invoke subsequent events in extension of time — the showcause letters of 14th February 2020 and 17th March 2020 being the latest relied upon — does not avail him, and that, in any event, the Claimant’s and Respondent’s mutual obligations in respect of the disputed increment ceased upon his secondment to the parent Ministry headquarters in Nairobi on 26th August 2020, such that no element of continuing injury arises to bring the claim within the twelve-month limb of Section 89. 15.On the competence of a preliminary objection to dispose of a suit on a plea of limitation, the Respondent cites Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra), where Sir Charles Newbold P held—“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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 an exercise of judicial discretion.” 16.The Respondent submits that the Claimant’s case hinges on a stale cause of action which offends the law of limitation and ought not to be entertained, and prays that the Preliminary Objection dated 1st October 2025 be allowed, and the suit dismissed in limine, with costs. E. The Claimant's Response 17.Despite the timelines given by the Court for the filing of written submissions in these proceedings, the Claimant did not file any submissions in opposition to the Notice of Preliminary Objection, nor has he placed before the Court any material controverting the facts, the computation of time, or the authorities relied upon by the Respondent. The objection accordingly falls to be determined on the basis of the pleadings on record, tested against the Respondent’s uncontroverted submissions. F. Issues For Determination 18.Arising from the foregoing, three issues fall for determination, namely—(i)Whether the Preliminary Objection is competent 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 19.It is 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,” among the examples given being “an objection to the jurisdiction of the court, or a plea of limitation.” A plea that a suit is time-barred under Section 89 of the Employment Act is, accordingly, properly raised by way of preliminary objection, provided it can be resolved without recourse to disputed facts. 20.I note, in passing, that the second ground of the Notice of Preliminary Objection asserts that the cause of action accrued “as of July 2012” — a date that finds no anchor anywhere in the Claimant’s Memorandum of Claim, which pleads accrual dates of November 2019 (in respect of the increment arrears) and December 2019 (in respect of the restructuring of his terms). This appears to be an inadvertence on the Respondent’s part, possibly carried over from pleadings filed in a similarly-framed matter against the Respondent. It does not, however, vitiate the objection: the first and third grounds plead the bar of limitation in general terms, and the Respondent’s own written submissions correctly anchor the argument to the dates actually pleaded by the Claimant, namely November and December 2019. Properly understood, the objection does not require the ascertainment of any disputed fact. The relevant dates — 24th August 2011, November 2019, 23rd December 2019, 26th August 2020, and the date of filing of the suit — are all drawn from the Claimant’s own pleadings and are not contested. What is truly in issue is the legal consequence of those admitted facts for purposes of limitation, a question pre-eminently of law. The objection is accordingly competently raised. 21.As to timeliness, it is trite that an objection touching on the jurisdiction of the Court, of which a plea of limitation is a 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 that “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.” The Memorandum of Claim bears a CTS filing stamp of 10th September 2025, although the Respondent’s submissions, at paragraph 1, refer instead to filing on 13th September 2025 according to the CTS portal timestamp; nothing turns on the discrepancy, for reasons that will become apparent. The Respondent filed its Notice of Preliminary Objection on 1st October 2025 — within three weeks of either date, and well before the matter proceeded to hearing or to the taking of evidence. The objection was therefore raised at the earliest opportunity available to the Respondent and is properly taken. I so find, and proceed to determine it on its merits. Whether the claim for Kshs. 3,394,067.00 (increment arrears) is time-barred 22.The Claimant’s own pleaded case is dispositive of this head of claim. At paragraph 7 of the Memorandum of Claim, he avers that the Respondent’s failure to implement the increments set out in the letter of 24th August 2011 resulted in “unpaid salary arrears amounting to Kshs. 3,394,067.00 as at November, 2019.” I find, as urged by the Respondent, that the cause of action in respect of this sum — being the “act, neglect or default complained of” within the meaning of Section 89 of the Employment Act — accrued as at November 2019, that being the date to which the Claimant himself, in his own pleading, computes and confines this head of claim. Time, for purposes of the three-year limitation period, began to run at the very latest in November 2019 and lapsed in November 2022. 23.The suit was filed on 10th September 2025 (or, on the Respondent’s own account, 13thSeptember 2025) — on either date, close to three years after the limitation period had already lapsed. The claim for Kshs. 3,394,067.00 is accordingly time-barred. Whether the claim founded on breach of contract (the restructuring of 23rd December 2019) is time-barred 24.Separately, and in respect of the Claimant’s claim properly founded on breach of contract, I find that the cause of action arose in December 2019, when, through its letter dated 23rd December 2019, the Respondent purported to restructure the Claimant’s employment contract by scrapping the annual increment that had been set out in the earlier letter dated 24th August 2011 — a letter which the Claimant himself asserts had contractual effect and bound the Respondent. It was that letter of 23rd December 2019 which constituted the definite and identifiable act of variation of which the Claimant complains, and it is from that date that time began to run for purposes of Section 89. The Claimant’s own pleading confirms that he had immediate knowledge of the alleged breach at the time: on his own averment, he declined to sign the new terms, and his salary for December 2019 and January 2020 was consequently withheld before being released in February 2020. The three-year period computed from 23rd December 2019 lapsed on 23rd December 2022 — again, well before the suit was filed in September 2025. The same reasoning applies with equal force to the alternative claim of Kshs. 1,680,945.27 (and to the Respondent’s own contested tabulation of Kshs. 327,531.00), both of which are pleaded as arising from the very same restructuring effected by the letter of 23rd December 2019, and are accordingly equally out of time. 25.Nor is the position improved by treating the non-payment of the increment as a continuing injury. Even on that characterisation most favourable to the Claimant, Section 89 affords only twelve months from the cessation of the injury. The wrong complained of — non-award of increments due under the Respondent’s own CDA salary structure — was, by its nature, tied to the Claimant’s service under that structure. On the Claimant’s own pleading, he was transferred out of the Respondent’s establishment to the parent Ministry in Nairobi on 26th August 2020, where he thereafter served under a different administrative structure until his eventual retirement in December 2024. Whatever continuing character the alleged injury may have had while he remained on the Respondent’s payroll, it could not, and did not, survive his departure from the Respondent’s establishment and salary structure on 26th August 2020. Twelve months from that date lapsed on 26th August 2021 — more than four years before the suit was filed. Whichever approach is taken — accrual in November 2019, accrual in December 2019, or treatment as a continuing injury ceasing upon secondment in August 2020 — the Claimant’s claims, in their entirety, are time-barred under Section 89 of the Employment Act. 26.I have also considered whether the later correspondence pleaded by the Claimant — the demand letter of 27th January 2025 and the Respondent’s substantive response of 24th July 2025 — could operate to postpone or revive the accrual of the cause of action. I am unable to so find. A demand for payment, and a response to that demand, are not themselves the “act, neglect or default” giving rise to a cause of action; they are steps taken long after a cause of action, already accrued and already stale, came to be agitated. To hold that correspondence exchanged more than five years after the event complained of could reset the limitation clock would be to render Section 89 nugatory. 27.It follows, and I so find, that from whichever angle the Claimant’s claim is examined —whether by reference to the accrual of the increment-arrears claim in November 2019, the accrual of the breach-of-contract claim upon the restructuring letter of December 2019, or the cessation of any continuing injury upon the Claimant’s secondment in August 2020 — the suit as filed on 10th September 2025 was filed out of time, contrary to Section 89 of the Employment Act, Cap. 226 Laws of Kenya. H. Disposition 28.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. 29.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. 30.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF JUNE, 2026.OCHARO KEBIRAJUDGE