[2016] KEELRC 995 (KLR)
The court found that there are disputed facts regarding when, if at all, the internal appeal mechanisms were exhausted and when the cause of action crystallized. The retirement was effected in 2010 but backdated to 2003, raising further factual disputes. As such, the preliminary objection cannot be determined...
Source-derived case information.
- Citation
- [2016] KEELRC 995 (KLR)
- Parties
- Claimant: Shem Kisanya; Respondent: County Government of Nairobi; Respondent: The Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 201 of 2015
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection deferred; to be determined at full hearing
- Legal Topics
- Unfair Termination, Limitation Periods, Public Service Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shem Kisanya
Claimant
County Government of Nairobi
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is barred by section 90 of the Employment Act due to limitation of actions.
- 2 Whether the claim is barred by section 3 of the Public Authorities Limitations Act.
- 3 Whether the preliminary objection can be determined without delving into disputed facts.
Ratio Decidendi
The court found that there are disputed facts regarding when, if at all, the internal appeal mechanisms were exhausted and when the cause of action crystallized. The retirement was effected in 2010 but backdated to 2003, raising further factual disputes. As such, the preliminary objection cannot be determined without delving into the merits of the case. Therefore, the objection must await the full hearing.
Court Disposition
preliminary objection deferred; to be determined at full hearing
Orders
- The preliminary objection is to be determined at the hearing on the merits.
- Costs in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CAUSE NO. 201 OF 2015
SHEM KISANYA…………….………………CLAIMANT
VERSUS
COUNTY GOVERNMENT OF NAIROBI.....….1ST RESPONDENT
THE HON. ATTORNEY GENERAL…….……..2ND RESPONDENT
Mr. Khalwale for claimant
Mr. Kithi for 1st respondent
M/S Lubia for 2nd respondent
RULING
This suit was filed on 19th February 2015 seeking payment of terminal benefits set out under paragraph 38 (i) to (ix) of the statement of claim for wrongful and unfair termination of employment.
From the facts discernable on the face of the pleadings, the claimant was retired with effect from 15th June 2003 by a letter dated 3rd February 2010. At the time the claimant was 50 years. It is alleged that an appeal from the decision of the respondent to retire the claimant is pending todate. See letter from the town clerk dated 2nd November 2009, marked ‘SK8’. As at 3rd May 2012 Public Service Commission of Kenya was still addressing the matter internally. See letter dated 3rd May 2012 marked ‘SK12’.
The respondent filed a notice of intention to raise a preliminary objection on 22nd August 2015 to wit;
the claimant’s statement claim offends the mandatory provision of section 90 of the Employment Act and ought to be struck off;
the claim offends the mandatory provisions of section 3 of the Public Authorities Limitations Act.
It is clear to the court, that there is a dispute of fact as to when, if at all the internal machinery of the 1st respondent was exhausted in respect of this dispute. Furthermore, the retirement effected in the year 2010 is backdated to the year 2003. This takes the matter out of the purview of the Employment Act, 2007 and therefore section 90 therein.
The issue as to when the cause of action crystalised cannot be determined without going into the facts of the case.
On the basis of the Mukisa Biscuits case the preliminary objection must await the hearing on the merits.
Costs in the cause.
Dated and delivered at Nairobi this 1st day of July, 2016.
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE