https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/154

Mwendwa v Muema & another (Cause E011 of 2024) [2026] KEMC 154 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEMC 154 (KLR) Republic of Kenya In the Mombasa Law Courts Cause E011 of 2024 EM Mwamuye, SRM June 25, 2026 Between Jeremiah Muema Mwendwa Claimant and Phylis Muema 1st Respondent The Chairperson of Vescon One Residents’ Welfare Group 2nd Respondent Ruling 1.Before Court is the Notice of Motion dated 20th April 2026 filed by the 1st Respondent, seeking orders that the claim against her be struck out and/or dismissed with costs. 2.The application is expressed to be brought under Sections 90 of the Employment Act, Rules 13, 45 and 47 of the Employment and Labour Relations Court (Procedure) Rules, 2024 and other enabling provisions of the law. 3.The application is supported by the affidavit of Phylis Muema sworn in April 2026 and is opposed through the Replying Affidavit of the Claimant, Jeremiah Muema Mwendwa, sworn on 4th May 2026. 4.The parties filed written submissions which the Court has considered. The Application 5.The 1st Respondent's case is straightforward. She contends that:a.The Claimant's employment terminated on 28th November 2021.b.Summons against her were taken out on 24th February 2026.c.The claim against her was therefore commenced more than three years after the cause of action arose.d.The claim against her is statute barred under Section 90 of the Employment Act.e.Consequently, this Court lacks jurisdiction to entertain the claim against her. 6.The Applicant therefore seeks the striking out of the suit as against her. The Response 7.The Claimant opposes the application. His position is that:a.The suit was instituted on 22nd August 2022.b.Summons were issued on 23rd August 2022.c.Service was effected upon the 1st Respondent on 24th August 2022.d.The 1st Respondent entered appearance through M/s Sharia Nyange Njuguna & Co. Advocates on 20th September 2022.e.The 1st Respondent has therefore been a party to the proceedings since 2022.f.The summons extracted on 24th February 2026 were necessitated by the amendment of the pleadings and joinder of the 2nd Respondent following a ruling delivered on 30th October 2025.g.The claim against the 1st Respondent was not instituted in 2026 and therefore cannot be said to be statute barred. Issues for Determination 8.Having considered the application, affidavits and submissions, the Court finds that the following issues arise for determination:h.Whether the claim against the 1st Respondent was instituted outside the limitation period prescribed under Section 90 of the Employment Act.i.Whether this Court lacks jurisdiction to entertain the claim against the 1st Respondent.j.Whether the application dated 20th April 2026 is merited. Analysis Whether the claim against the 1st Respondent is statute barred 9.There is no dispute that the Claimant's employment terminated on 28th November 2021. 10.Section 90 of the Employment Act provides:“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 shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained of..." 11.The Applicant's argument is that the claim against her was commenced on 24th February 2026 when summons were extracted. 12.The Court is unable to agree. 13.The record placed before Court shows that: The Memorandum of Claim was filed on 22nd August 2022. The 1st Respondent was named as a Respondent in the original proceedings. Summons were issued shortly thereafter. An Affidavit of Service was filed showing service upon the 1st Respondent on 24th August 2022. A Memorandum of Appearance was subsequently filed by M/s Sharia Nyange Njuguna & Co. Advocates on 20th September 2022 on behalf of the Respondent. These facts have not been satisfactorily controverted. 14.The Court therefore finds that proceedings against the 1st Respondent were commenced in August 2022, well within three years from the date of termination. 15.The subsequent amendment of pleadings and extraction of summons in February 2026 did not create a fresh cause of action against the 1st Respondent. Neither did it amount to commencement of a new suit. 16.An amendment ordinarily relates back to the date of institution of the suit unless it introduces a completely new and distinct cause of action. No such circumstances have been demonstrated before this Court. 17.The Applicant has therefore failed to establish that proceedings against her were first commenced in February 2026. Accordingly, the Court finds that the claim against the 1st Respondent is not statute barred. Whether the Court lacks jurisdiction 18.The Applicant relied heavily on the celebrated decision in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1. The principles in that decision are beyond dispute. Jurisdiction is everything. 19.However, the question is whether jurisdiction is absent in the present case. The Applicant's challenge to jurisdiction is founded entirely upon limitation. 20.Having found that the suit against the 1st Respondent was instituted in August 2022 and within the limitation period prescribed by Section 90 of the Employment Act, the basis upon which the jurisdictional challenge was mounted collapses. 21.The Court therefore finds that it possesses jurisdiction to hear and determine the dispute. Whether the 1st Respondent can remain a party to the proceedings 22.The Applicant further submits that she was sued merely because she was formerly the Chairperson of the Association and that having ceased to hold office she ought not remain a party to the proceedings. The Court notes that this issue is not entirely new. 23.The material before Court shows that an earlier application touching on the status of the 1st Respondent was determined on 30th October 2025. Following that determination, leave was granted to amend the pleadings and join the 2nd Respondent. 24.The present application has primarily been argued on limitation and jurisdiction. 25.The question whether the evidence ultimately establishes personal liability on the part of the 1st Respondent is a substantive issue for determination upon hearing of the claim. 26.At this interlocutory stage, and on the material presently before Court, the Court is not persuaded that the claim against the 1st Respondent is so hopeless, scandalous, frivolous or unsustainable as to warrant striking it out. 27.Striking out remains a draconian remedy to be exercised sparingly and only in the clearest of cases. This is not one such case. The issues raised by the pleadings require interrogation through evidence at the hearing. Determination 28.The Court consequently finds that:a.The claim against the 1st Respondent was instituted in August 2022 and was therefore filed within the limitation period prescribed under Section 90 of the Employment Act.b.The extraction of summons in February 2026 following amendment of the pleadings did not amount to commencement of a fresh suit against the 1st Respondent. The suit against the 1st Respondent is not statute barred. This Court has jurisdiction to hear and determine the dispute. The Notice of Motion dated 20th April 2026 lacks merit. Orders 29.Accordingly, the Notice of Motion dated 20th April 2026 is hereby dismissed. The costs of the application shall abide the outcome of the main claim. The matter shall proceed to hearing on the merits against both Respondents.It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS At MOMBASA THIS 25TH JUNE 2026.……………………………………………….EMILY M. MWAMUYESENIOR RESIDENT MAGISTRATE