https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/564

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **ELRC CAUSE NO. E008 OF 2026** **PETER MULATI………............……………………………………………………..CLAIMANT** **VERSUS** **COUNTY SECRETARY COUNTY GOVERNMENT OF BUNGOMA & 3 OTHERS………………………………………………..RESPONDENT** **RULING** 1. This ruling determines the Respondents’ Notice of Preliminary Objection dated 12th March 2026. 2. The crux of the instant Preliminary Objection is that this suit is statute barred given that it was filed in 2026 well past three years from the date the cause of action arose in 2019 contrary to the express provisions of section 89 of the Employment Act. 3. The Respondents averred that given that the Claimant’s salary was reportedly not paid by the Respondents in 2019, that means that the Claimant was constructively dismissed in 2019 thus the Claimant’s cause of action arose in 2019 when he was constructively dismissed. 4. The Claimant, on his part, opposed the instant Preliminary Objection through Grounds of Opposition dated 07th May 2026, where he averred that this claim relates to continuing injury to him given that he is still the Respondents’ employee despite having not been paid his salary since 2019. 5. The Claimant added that section 89 of the Act is express that in the event of a continuing injury arising from an employee – employer relationship, a cause of action only arises after the cessation of the continuing injury, which is not the case in this matter. He thus took the position that his cause of action did not arise in 2019 as averred by the Respondents. 6. In the circumstances, the Claimant urged this court to find that the instant Preliminary Objection was grounded on disputed facts; thus, the same should be dismissed with costs since the law frowns upon a Preliminary Objection grounded on disputed facts. 7. The parties herein canvassed the instant Preliminary Objection by way of written submissions. The written submissions by the parties herein were largely a rendition of the said parties’ averments in their respective pleadings; hence, it will not serve any purpose to reproduce those written submissions in this ruling. **ANALYSIS AND DETERMINATION** 1. This court has given due regard and consideration to the pleadings, written submissions, and the authorities relied upon by the parties herein. The issues that commend themselves to this court for determination are whether the Notice of Preliminary Objection herein is properly before this court and whether the same is merited. 2. **Whether the Notice of Preliminary Objection is properly before this court** 3. In the often-quoted case of **Mukisa Biscuit Manufacturing Co Ltd Vs West End Distributors Limited (1969)E.A 696,** the court defined a preliminary objection in the following words: **“**A Notice of Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all 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 exercise of judicial discretion.”(Emphasis added) 1. The essence of a preliminary objection was given by Law, JA, and Sir Charles Newbold P. in the Mukisa Biscuitscase (supra),where Law, JA, at page 700, stated that: ***“…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.”(Emphasis added)*** 1. The Supreme Court in **Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others [2015] eKLR** added its voice to what constitutes a preliminary objection by stating: *“ Thus a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.”* 1. The common thread running through the authorities cited above is that the ingredients of a Notice of Preliminary Objection are that it must be based on pure points of law, the point of law raised in the Notice of Preliminary Objection must be capable of disposing of the suit summarily, and that there should be no contest as to the facts the Notice of Preliminary Objection is based on. 2. The instant Preliminary Objection is grounded on the provisions of section 89 of the Employment Act, which 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 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. This court’s understanding of the provisions of the law above is that a cause of action arising out of the Act or a contract of service can only be instituted within three (3) years from the date when the cause of action arose, save for claims of continuing injury or damage which must be filed within twelve months after the cessation of the continuing injury or damage. 2. It is also the law in this jurisdiction that the time within which to file a claim arising out of the termination of a contract of service starts running from the date the termination is communicated to an employee, and that there is no room for extension of time to file such claims founded on a contract. This court finds support from **Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] KECA 257 (KLR),** where the Court of Appeal stated thus: *“Pursuant to this provision, the appellant having been dismissed on 11th August 2008, she should have filed her claim by 10th August 2011. However, as we have stated, she filed it on 15th August 2013 and that is obviously the reason why she sought an extension of time to deem the Cause as having been filed out of time with leave of the Court.* *It may very well be that the appellant was let down by her erstwhile lawyers who filed her claim out of time and later failed to prosecute the appeal that sought to reverse that dismissal order.* *Much as we sympathize with the appellant if that is true, we cannot help her as the law ties our hands.****Section 90****of the Employment Act 2007 which we have quoted verbatim herein above, is in mandatory terms. A claim based on a contract of employment must be filed within 3 years. As this Court stated in the case of****Divecon Limited -vs- Samani******[1995-1998] 1 EA P.48,****a decision relied upon by Radido, J. in****Josephat Ndirangu - vs – Henkel Chemicals (EA) Limited, [2013] eKLR****, the limitation period is never extended in matters based on contract. The period can only be extended in claims founded on tort and only when the applicant satisfies the requirements of****Sections 27****and****28****of the Limitation of Actions Act.”* 1. The foregoing leaves no doubt in this court’s mind that the instant Preliminary Objection is based on a point of law (limitation of actions) since a finding that this claim was filed in contravention of section 89 of the Act will inevitably divest this court of the jurisdiction to hear and determine this claim, in the first instance. 2. However, the question of when the cause of action herein arose is disputed by the parties herein. Whereas the Claimant maintained that this is a case of continuing injury or damage, the Respondents took the position that the cause of action arose in 2019 when the Claimant’s salary was not paid, given that non-payment of salary constitutes constructive dismissal. 3. There is no doubt that non-payment of salary by an employer constitutes constructive dismissal (see **Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga (2015) eKLR**). Therefore, if the Respondents stopped paying the Claimant's salary in 2019, the Claimant was constructively dismissed in 2019. That means that the three years within which the Claimant was to file his claim for unfair dismissal began running in 2019. 4. Be that as it may, a reading of the Claimant’s Statement of Claim on record shows that the Claimant averred that he is still in the Respondent’s employment despite failure by the Respondents to pay his salary since 2019 to date. This informed the Claimant’s position that this is a case of continuing damage or injury which is properly before this court per section 89 of the Act. 5. This court, given the divergent positions taken by the parties herein on when the cause of action arose, on whether the Claimant’s employment was terminated in 2019, and on whether the Claimant is still in the Respondents’ employment, cannot at this interlocutory stage determine with finality the question of when the Claimant’s cause of action arose before making a finding of whether or not this suit is statute barred. The disputed facts can only be determined after hearing the parties herein in a full hearing. 6. It is against this backdrop that this court finds and holds that the instant Preliminary Objection is not properly before this court for being based on disputed facts. **Whether the Notice of Preliminary Objection is merited** 1. The finding above that the instant Preliminary Objection is grounded on disputed facts inclines this court to find that the instant Preliminary Objection is bereft of merit. 2. Before penning off, this court notes that the Claimant has sued several Respondents. There could be an issue of misjoinder. The Claimant’s counsel is directed to find out the proper party or parties to be sued in cases involving disputes arising from a contract of service between a county government employee and a county government. **DETERMINATION** 1. The upshot of the foregoing is that the Respondent’s Notice of Preliminary Objection dated 12th March 2026 is dismissed. 2. Costs to abide the outcome of this suit. **Ruling read, signed, and delivered in open Court at Bungoma this 30th day of June 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Wotia for the Claimant Mr. Owino for the Respondents C/A: Mr. Rioba