https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1674

Ngeno v Public Service Commission & 3 others (Cause E157 of 2025) [2026] KEELRC 1674 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1674 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E157 of 2025 CN Baari, J June 19, 2026 Between Erick K Ngeno Claimant and Public Service Commission 1st Respondent The Cabinet Secretary, Ministry of Interior & Co-ordination of National Government 2nd Respondent The Comptroller of State House 3rd Respondent The Hon Attorney General 4th Respondent Ruling 1.Before Court is the 1st Respondent’s Notice of Preliminary Objection dated 8th October, 2025, wherein it seeks the striking out of the Claimant’s Memorandum of Claim dated 28th February, 2025, on the following grounds: -i.That under Section 89 of the Employment Act, 2007, employment and labour relations claims should be filed in the ELRC within a period of three (3) years after the cause of action has arisen.ii.That by instituting the instant suit in the year 2025, over five (5) years after the cause of action had arisen, the same falls outside the limitation period prescribed under Section 89 of the Employment Act, 2007, and that in view of the two grounds, the instant Memorandum of Claim is not only bad in law for want of jurisdiction but also statutorily time barred. 2.Parties were directed to canvass the objection through written submissions, and submissions were received from both parties. The 1st Respondent’s Submissions 3.The 1st Respondent submits that the cause of action herein arose on 7th April 2020, more than five years before the present proceedings, and that the Claimant filed the Memorandum of Claim on 28th February 2025, after the alleged cause of action accrued. 4.It is the 1st Respondent’s submission that the claim was therefore instituted outside the prescribed statutory limitation period. 5.The 1st Respondent submits that Section 89 of the Employment Act, 2007 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.” 6.The 1st Respondent therefore submits that it is evident that the Claimant’s claim is statute barred, having been filed well outside the limitation period prescribed by law. It is its further submission that the suit is incompetent and unsustainable, as it was instituted after the expiry of the statutory timelines which govern the time within which employment-related claims may be brought before the Court. 7.The 1st Respondent thus contends that the claim ought to be dismissed for being filed out of time. The 1st Respondent placed reliance in Elias Kibathi & another v Attorney General [2021] eKLR, to support this assertion. 8.The 1st Respondent finally submits that, in view of the foregoing, the Claimant’s right to sue having lapsed, he lacked the capacity to bring any cause of action against the Respondents, and his claim as constituted herein should be struck out with costs. The Claimant’s Submissions 9.The Claimant opposed the preliminary objection and argued that the cause of action is not limited to the date of dismissal alone. According to the Claimant, the legality and propriety of the termination remain in issue, and should the Court find the termination unlawful, the impugned dismissal would be rendered invalid. 10.The Claimant further submits that any delay in instituting the suit was occasioned by the mistake or inadvertence of counsel, despite him having issued instructions within time. The Claimant therefore urges the Court to take this circumstance into account and to determine the matter on its merits in the interest of substantive justice rather than technical procedural consideration. 11.The Claimant submits that the present objection does not meet the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 because it assumes, without evidence, the precise date on which the cause of action accrued, that the claim is confined solely to the dismissal, and that no intervening or continuing breaches occurred thereafter. According to the Claimant, these issues are factual and evidentiary in nature and can only be determined upon consideration of evidence. 12.The Claimant further argues that the preliminary objection is premature, incompetent, and unsuitable for determination at this stage of the proceedings. 13.The Claimant argues that he instructed counsel to file the suit within time and had already served a demand letter and notice of intention to sue on 7th January 2021. He contends that any delay in filing was caused solely by counsel's mistake or inadvertence and should not be attributed to him. 14.The Claimant therefore urges the Court to uphold substantive justice and not penalize him for his advocate's error, particularly where any resulting prejudice can be remedied through an award of costs. 15.It is the Claimant’s submission that dismissing the suit on account of delay would undermine access to justice and unfairly punish him for his advocate's mistake. He maintains that the date on which the cause of action accrued is disputed and cannot be determined on a preliminary objection. 16.It is his submission that the objection raises factual issues requiring evidence and should be dismissed to allow the claim to be heard on its merits. Analysis and Determination 17.The sole issue for determination is whether the Claimant’s Claim is statute barred. 18.Section 89 of the Employment Act, 2007 states thus on time limitation:-“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 in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained of...” 19.The law on what amounts to a valid preliminary objection was settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors LtdLtd [1969] EA 696, where the Court held that a preliminary objection consists of a pure point of law which is argued on the assumption that all factspleaded by the opposite party are correct and which, if successful, may dispose of the suit. 20.The issue of limitation of actions raised herein is no doubt a proper subject of a preliminary objection, as it goes to the jurisdiction of the Court. The Court of Appeal in Divecon Ltd v Samani [1997] (CAK), held that where a claim is filed outside the prescribed limitation period, a court lacks jurisdiction to entertain it and has no power to extend time unless expressly authorized by statute. 21.Similarly, in Attorney General & Another v Andrew Maina Githinji & Another [2016] KECA 817 (KLR), the Court of Appeal reaffirmed that limitation under Section 90 (now 89) of the Employment Act is substantive and jurisdictional and cannot be enlarged by judicial discretion. 22.Further, the Supreme Court in Kenya Airports Authority v Shadrack Abraham Kisongochi [2016] KECA 481 (KLR), affirmed that the limitation period under Section 90 is mandatory and that courts cannot invoke Article 159 of the Constitution to revive claims filed outside the statutory period. 23.From the pleadings before Court, the Claimant does not deny that the impugned termination occurred on 7th April 2020. It is also not disputed that the Memorandum of Claim herein was filed on 28th February 2025, approximately four years and ten months after the Claimant’s termination. 24.On the face of the pleadings, therefore, the claim was instituted well beyond the three year limitation period prescribed under Section 89 of the Employment Act. 25.Further, although the Claimant argues that the legality of the termination remains in issue and that the accrual date is disputed, in employment disputes founded on unlawful termination, the cause of action accrues on the date of termination. The Court of Appeal in G4S Security Services (K) Ltd v Joseph Kamau & 468 Others [2018] KECA 827 (KLR), held that a cause of action founded on termination of employment accrues on the date the employment relationship is terminated and the limitation period begins to run from that date. 26.The Claimant has also not pleaded nor demonstrated any continuing injury contemplated under Section 89 that would postpone the running of time. Mere dissatisfaction with the legality of a dismissal does not create a continuing cause of action. 27.The Claimant's further argument that the delay was occasioned by counsel's mistake is equally unavailing. While courts have on many occasions held that litigants should not ordinarily suffer for the mistakes of their advocates, that principle cannot confer jurisdiction where none exists. In matters governed by statutory limitation, jurisdiction cannot be created through equitable considerations. The Court of Appeal in Divecon Ltd v Samani (Supra) expressly held that courts cannot extend time on grounds of equity where a statute has fixed a limitation period. 28.Likewise, Article 159 of the Constitution cannot override express statutory provisions on limitation. The Supreme Court in the Kenya Airports Authority case (supra) reiterated that Article 159 is not a panacea for all procedural and jurisdictional deficiencies and cannot be invoked to circumvent mandatory statutory timelines. 29.In the upshot, I find and hold that the relevant facts necessary to determine limitation are apparent from the pleadings herein and it is clear that the Claimant’s Claim is statute barred. 30.The Preliminary Objection dated 8th October 2025 is therefore found to have merit, and the court returns that it lacks jurisdiction to entertain the claim. 31.The Claimant’s Claim is hereby struck out in its entirety. 32.I make no orders on costs. 33.Orders accordingly. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 19TH DAY OF JUNE, 2026.C. N. BAARIJUDGEAppearance:Mr. Mwathe present for the ClaimantMs. Wangeci present for the 1st RespondentN/A for the 2nd, 3rd & 4th Respondents.Ms. Esther S -C/A