https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2339

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E349 OF 2024** *(Before D. K. N. Marete)* **STEPHEN AMUKOWA SANGARO…………………………………...……APPELLANT** **VERSUS** **STEEL STRUCTURES LIMITED…………………………………………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal dated 5th December 2024 from a judgment delivered on 8th November, 2024 at the Chief Magistrate’s Court, Milimani Commercial Courts, in Civil Suit No. E5247B of 2016: The Appellant was the Plaintiff in the subordinate court. By a Plaint dated 18th July, 2016 he sought general damages including loss of amenities, pain and suffering and loss of earnings, special damages, costs and interest, arising from injuries he sustained in a workplace accident on or about 27th July, 2013. The trial court dismissed the suit in its entirety on the ground that it was statutorily time-barred under Section 90 of the Employment Act. It comes out as follows; *1. The learned trial magistrate gravely erred in law by dismissing the Appellant’s suit for being statutorily time-barred whereas the Respondent had not pleaded the same in its pleadings.* *2. The learned trial magistrate gravely erred in law by considering the issue of whether the suit was statutorily time-barred by virtue of Section 90 of the Employment Act, whereas the issue had not been raised in the pleadings.* *3. The learned trial magistrate gravely erred in law by considering an issue that was only raised at the time of hearing and had not been pleaded in the pleadings.* *4. The learned trial magistrate erred in law and fact by failing to indicate the possible award if the Appellant had been successful.* *5. The learned trial magistrate gravely misdirected himself in law in failing to consider and analyse the Appellant’s closing written submissions.* The Appellant prays that the appeal be allowed, the findings of the trial court be set aside, this Court do find in favour of the Appellant and award the reliefs sought in the Plaint, or in the alternative, that the suit be remitted to the subordinate court for assessment of damages, and the costs of the subordinate court and of this appeal be awarded to the Appellant. The Appellant prays as follows; 1. *The appeal be allowed.* 2. *This Honourable Court to proceed and set aside the findings of the trial court.* 3. *This Honourable Court do proceed and find in favour of the Appellant and award the Appellant the reliefs sought in the Plaint.* 4. *In the alternative to (c) above, this Honourable court remit the suit to the subordinate court for assessment of damages.* 5. *The costs of the subordinate court and this appeal be awarded to the Appellant herein.* 6. *Such further orders as may seem just be made.* It is the Appellant’s case and submission that he was employed by the Respondent as a welder at its construction site and that on or about 27th July, 2013. While in the course of his duties and on the instructions of the Respondent’s supervisor, he was directed to reposition an internal roof purline that was out of place on the roof. On unbolting one side of the purline, it unhinged suddenly, causing him to fall from the roof onto the slab below. He sustained a compound fracture of the right femur with shortening of the lower limb by two inches and a permanent incapacity assessed at 30%. The Appellant submits that the defence of limitation was never pleaded in the Respondent’s Statement of Defence dated 20th September, 2016 and that it could not lawfully be raised or relied upon by the trial court without having been pleaded, pursuant to Order 2 Rule 4(1) of the Civil Procedure Rules, 2010. The Appellant on this seeks to rely on the authority of **Mohamed Abdikadir Mohamed v Sammy Kagiri & Another [2016] eKLR**. The Respondent’s case and submission is that the trial court correctly held that a time-barred claim presents a jurisdictional defect which the court is independently bound to notice and act upon regardless of whether limitation has been pleaded, and that the suit was properly dismissed. The Respondent admits that no limitation defence was specifically pleaded but contends that limitation under Section 90 of the Employment Act, 2007 is a matter of jurisdiction and not merely a procedural defence. After a considered look and scrutiny of the Memorandum of Appeal, the Record of Appeal, the proceedings and evidence on record and the submissions of the parties the issues for determination therefore become; 1. Whether the trial court erred in dismissing the Appellant’s suit on the ground of limitation of time in circumstances where the defence of limitation had not been pleaded by the Respondent. 2. What orders follow. The 1st issue for determination is whether the trial court erred in dismissing the Appellant’s suit on the ground of limitation of time in circumstances where the defence of limitation had not been pleaded by the Respondent. It is trite, and indeed common ground, that Order 2 Rule 4(1) of the Civil Procedure Rules, 2010 requires a party to specifically plead any matter, including a relevant statute of limitation, which would make the opposing party’s claim not maintainable or which would otherwise take that party by surprise. The purpose of the rule is threefold: to avoid ambush upon a party on so fundamental an issue as limitation; to put the party on notice that his claim is impugned as unmaintainable in law and to afford that party the opportunity to plead such facts as may bring his claim within any statutory exception. This was the precise reasoning relied upon by the trial court itself in adopting the holding in **Mohamed Abdikadir Mohamed v Sammy Kagiri & Another**,supra. Having correctly identified and adopted that principle, the trial court then departed from it without articulating any principled basis for the departure. The trial court proceeded to dismiss the suit on the very ground that the cited authority holds cannot be relied upon unless pleaded, reasoning instead that a time-barred claim presents a jurisdictional defect that the court is independently bound to notice and act upon. With respect, this conflates two distinct legal concepts. Limitation of time is a defence going to the maintainability of a claim. It does not extinguish the underlying cause of action, and it does not deprive a court of subject-matter jurisdiction over the suit. A court does not lose jurisdiction merely because a claim may, on the facts, be susceptible to a limitation defence. The authorities relied upon by the trial court, namely **Kimani Wanyoike v Electoral Commission Civil Appeal No. 213 of 1995 (UR)** on strict compliance with prescribed statutory procedure, and **Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169** on the consequences of void acts generally, do not speak to limitation at all, still less to a court’s entitlement to raise an unpleaded limitation defence of its own motion. Neither authority was shown to support the proposition for which it was deployed. This finding is reinforced by the Respondent’s own pleadings. At paragraph 13 of its Statement of Defence dated 20th September, 2016 the Respondent expressly admitted the jurisdiction of the trial court. A party that has pleaded an admission of jurisdiction and has at no point sought to amend its pleadings to plead limitation cannot be heard, nor can the court of its own motion resurrect for it, a defence going to the very jurisdiction it admitted. Had the Respondent considered limitation to be a true jurisdictional bar, the proper course was to plead it, or at minimum to seek leave to amend its Statement of Defence once the point arose. It did neither. This court is further satisfied that the manner in which the issue arose occasioned real prejudice to the Appellant of precisely the kind Order 2 Rule 4(1) is designed to prevent. The question of limitation was raised for the first time in cross-examination. The Appellant was consequently denied any opportunity to plead, in a Reply to Defence or otherwise, facts capable of bringing his claim within any exception under the Limitation of Actions Act, Chapter 22 Laws of Kenya or under Section 90 of the Employment Act, 2007 itself, for instance on the question of continuing injury or incapacity. The trial court’s own Judgment records this very prejudice and then proceeds to dismiss the suit notwithstanding. It is an error of law. Grounds 1, 2 and 3 of the Memorandum of Appeal succeed. This court has also had regard to the inconsistency in the Appellant’s account as to the location of the accident, pleaded in the Plaint as Dandora but given in oral evidence as Muthaiga. This is a matter properly going to the credibility of the Appellant’s case on liability and quantum, and not to the question of limitation, which the trial court determined as a discrete threshold point without making any finding on liability. It would not be appropriate for this court, sitting on a first appeal from a dismissal entered solely on a point of limitation, to resolve that credibility question on a paper record where no such finding was made below. The proper course is remittal. Ground 4 is accordingly well founded to the extent that it confirms that the merits remain to be determined. Ground 5 does not require separate determination in light of the foregoing. On the 2nd issue, since the suit was dismissed on the threshold point of limitation alone and no finding was made on liability or quantum. It would not be open or appropriate to this court to make that determination in the first instance. I am therefore inclined to allow the appeal and order as follows; 1. The judgment of the Chief Magistrate’s Court, Milimani Commercial Courts, delivered on 8th November, 2024 in Civil Suit No. E5247B of 2016, together with the decree issued pursuant thereto is set aside. 2. Civil Suit No. E5247B of 2016 is remitted back to the Chief Magistrate’s Court, Milimani Commercial Courts, for hearing and determination on its merits before a magistrate other than Hon. Rawlings Liluma Musiega, Senior Resident Magistrate. 3. Each party shall bear its own costs of the suit in the trial court up to and including the judgment of 8th November, 2024. 4. Each party shall bear their costs of this cause. Delivered, dated and signed this **29th** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Mr. Ontita instructed by Kiruki & Kayika Advocates for the Appellant. 2. Mr. Chengecha instructed by Wangai Nyuthe & Company Advocates for the Respondent.