[2020] KEELRC 1527 (KLR)
The court found that the date and mode of the claimant's separation from employment were contested matters of fact, with the claimant alleging unlawful termination in July 2013 and the respondents alleging desertion in May 2012. Since these facts are central to determining whether the claim is statute barred and are...
Source-derived case information.
- Citation
- [2020] KEELRC 1527 (KLR)
- Parties
- Claimant: Rodgers Simiyu Ingati; Respondent: Doshi Company (Hardwares) Limited; Respondent: Doshi Enterprises Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 116 of 2016
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- L Ndolo
- Legal Topics
- Limitation Periods, Termination of Employment, Preliminary Objection, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rodgers Simiyu Ingati
Claimant
Doshi Company (Hardwares) Limited
Respondent
Doshi Enterprises Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claimant's suit is statute barred under Section 90 of the Employment Act, 2007.
- 2 Whether the effective date of separation is a contested fact requiring evidence.
- 3 Whether the preliminary objection raises a pure point of law.
Ratio Decidendi
The court found that the date and mode of the claimant's separation from employment were contested matters of fact, with the claimant alleging unlawful termination in July 2013 and the respondents alleging desertion in May 2012. Since these facts are central to determining whether the claim is statute barred and are not agreed upon, the issue cannot be resolved as a pure point of law. The court held that a preliminary objection is only appropriate where there are no disputed facts. Accordingly, the preliminary objection was overruled, and the matter was ordered to proceed to hearing on the merits, with costs awarded to the claimant.
Court Disposition
preliminary objection overruled
Orders
- The respondent's preliminary objection is overruled.
- Costs of the preliminary objection are awarded to the claimant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NO 116 OF 2016
RODGERS SIMIYU INGATI.................................................................CLAIMANT
VS
DOSHI COMPANY (HARDWARES) LIMITED....................1ST RESPONDENT
DOSHI ENTERPRISES LIMITED..........................................2ND RESPONDENT
RULING
1. This ruling is with respect to a Preliminary Objection raised by the Respondent by notice dated 25th January 2017.
2. The objection is based on the ground that the Claimant’s claim is statute barred by dint of Section 90 of the Employment Act, 2007.
3. The Respondent states that the cause of action herein arose on 30th May 2012 and the claim ought to have been filed on or before 29th May 2015.
4. The Claimant filed Grounds of Opposition on 13th February 2017 stating:
a) That the cause of action arose in July 2013;
b) That the claim filed 0n 15th February 2016 is within the limitation period;
c) That the Respondent’s Preliminary Objection is based on contested matters;
d) That the issue of limitation of time in this suit is a matter of evidence as opposed to law.
5. This Preliminary Objection turns on the effective date of the Claimant’s separation from the Respondent’s employment.
6. In his Memorandum of Claim dated 11th February 2016 and filed in court on 15th February 2016, the Claimant states that his employment was unlawfully terminated in late July 2013.
7. Conversely, in its Response dated 4th April 2016 and filed in court on 14th April 2016, the Respondent states that the Claimant deserted work on 31st May 2012.
8. It is evident therefore that the mode and date of the Claimant’s exit from the Respondent’s employment are contested matters of fact. As held in the celebrated case of Mukisa Biscuit Manufacturing Co Ltd v Westend Distributors (1969) EA 696 a Preliminary Objection is one which raises a pure point of law and is argued on the assumption that all the pleaded facts are uncontested.
9. In the present case, the parties have taken divergent positions with regard to the mode and date of the Claimant’s separation from the Respondent’s employment. The Court will therefore need to take evidence on this crucial set of facts.
10. For this reason, the Court finds the Respondent’s Preliminary Objection ill-advised and proceeds to overrule it with costs to the Claimant.
11. It is so ordered.
DATED SIGNED AND DELIVERED AT MOMBASA THIS 27TH DAY FEBRUARY 2020
LINNET NDOLO
JUDGE
Appearance:
Mr. Mbuya for the Claimant
Mr. Gor for the Respondent