[2015] KEELRC 1313 (KLR)
The court found that the issue of whether the suit is time barred is intertwined with factual matters, specifically the circumstances under which the initial suit was withdrawn and refiled. Since the original suit was filed within the limitation period and the withdrawal may have been directed by the subordinate...
Source-derived case information.
- Citation
- [2015] KEELRC 1313 (KLR)
- Parties
- Claimant: Mtana Juma Mwahunga; Respondent: B.O.G. Roka Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 266 of 2014
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- AN Makau
- Legal Topics
- Limitation of Actions, Employment Contracts, Preliminary Objection, Withdrawal and Transfer of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mtana Juma Mwahunga
Claimant
B.O.G. Roka Secondary School
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the present suit is time barred under the applicable limitation statutes.
- 2 Whether the withdrawal of the initial suit and its refiling in this court constitutes an abuse of court process.
Ratio Decidendi
The court found that the issue of whether the suit is time barred is intertwined with factual matters, specifically the circumstances under which the initial suit was withdrawn and refiled. Since the original suit was filed within the limitation period and the withdrawal may have been directed by the subordinate court for purposes of refiling in the appropriate forum, the question of limitation cannot be conclusively determined at the preliminary stage. The court held that the truth of these circumstances can only be established at a full hearing, and therefore, the preliminary objection on limitation is dismissed with costs.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the claimant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO. 266 OF 2014
MTANA JUMA MWAHUNGA …..................................................CLAIMANT
VERSUS
B.O.G. ROKA SECONDARY SCHOOL …...............................RESPONDENT
R U L I N G
BACKGROUND
1. The claimant brought this suit on 13/6/2014 claiming ksh.80,000 being salary for 8 months plus allowances and interest which fell in arrears from April 2006.
2. The respondent denied liability vide her response filed on 2/9/2014 whereby she also raised preliminary objection (P.O) to the suit for being time barred.
2. The P.O was disposed of by written submissions. According to the respondent the cause of action arose in 2006 and should therefore have been filed within 3 years thereafter as prescribed by Section 90 of the Employment Act. The respondent has submitted that the claim had been filed at the Kilifi Principal Magistrate's Court as PMCC No. 97 of 2010 but later on 28/8/2013 it was withdrawn with costs. She therefore prays for the present suit to be dismissed for being an abuse of the court process.
3. The claimant has opposed the P.O and prayed for it to be dismissed. He admits that the suit was initially filed before the subordinate court but contends that the suit was withdrawn for purpose of transferring it to this court. He has further contended that this suit was filed with the direction of the subordinate court and as such striking it would amount to a miscarriage of justice.
ANALYSIS AND DETERMINATION
5. There is no dispute that the suit was first filed in 2010 before the subordinate court and later the same was withdrawn for filing in this court. There is also no dispute that the cause of action arose in 2006 before the enactment of Section 90 of the Employment Act 2007 upon which the P.O is premised. There is also no dispute that the cause of action herein is governed by the provisions of Section 4 of the Limitation of Action Act which limited the life of a cause of action founded on employment contract to 6 years. It is also clear that in 2010 when the initial suit was filed, the limitation period had not yet lapsed. The issues for determination is whether the present suit is time barred.
Time barred suit
6. The court has considered the submissions by the two parties and noted that although the P.O raised the issue of limitation of time, in reality the same is founded on facts. The circumstances under which the suit was withdrawn from the subordinate court has been raised in the submissions. According to the claimant, the suit was withdrawn upon the court's direction that the same be brought to this court. This court has perused the photocopies of the subordinate court's written proceedings and noted that there is probability that both parties participated in the proceedings which led to the withdrawal of the suit with the intention of filing a fresh suit before this court. This being a matter of facts, the truth can only be proved during full hearing. Consequently the issue whether or not the suit not before the court is time bared shall be canvassed in trial alongside other issues raised in the suit.
DISPOSITION
For the foregoing reasons the P.O is dismissed with costs.
Dated, signed and delivered this 27th February 2015.
O. N. Makau
Judge