https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1907

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E800 OF 2025** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **JOHN KARIUKI WAWERU..……………………………….…CLAIMANT** **VS** **CMC RAVENNA KENYA.............................................RESPONDENT** **RULING** 1. In opposition to the Claimant’s Statement of Claim dated 5th August 2025, the Respondent filed a Notice of Preliminary Objection dated 12th November 2025 seeking the claim to be struck out with costs on the grounds that: 2. *The claim is an abuse of the court process as it is time-barred.* **Respondent’s Submissions** 1. It is the Respondent's case that its Preliminary Objection is anchored on Section 89 of the Employment Act, Chapter 226 Laws of Kenya, which provides that no civil action or proceedings based or arising out of the Act or a contract of service shall lie or be instituted unless commenced within three years next after the act, neglect or default complained of, or in the case of continuing injury or damage, within twelve months next after the cessation thereof. 2. The Respondent submitted that by the Claimant's own averments in paragraphs 4, 8, 11 and 12 of the Statement of Claim, he was an employee of the Respondent from 1st September 2017 until June 2019, and that the Respondent made an offer to him for final payment of dues which he rejected. Therefore, it argues that the Statement of Claim is more than four years overdue and is time-barred. 3. Reliance was placed on[***Walwanda v Radar Security Limited [2022] KEELRC 1217 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1217/eng%402022-05-13), where the Court, in dismissing a claim, held: *“In any event the alleged failure to remit was a continuing injury which ceased on 31.03.2017 when the termination took effect but the suit was filed on 24.04.2018 after lapsing of the 12 months of limitation in section 90 of the Act, for such continuing injuries. The Court finds that the two claims were as well time barred. They will collapse as unjustified and time barred.”* The Respondent further relied on [***G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/827/eng%402018-02-16)***.*** 1. Anchoring arguments on the celebrated decision in ***Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited (1989) KLR 1***, where the Court stated that jurisdiction is everything and that without it a court has no power to make one more step, the Respondent urged this Court to strike out the Statement of Claim dated 5th August 2025 with costs. **Claimant’s Submissions** 1. On the existence of the employment relationship and terms of remuneration, the Claimant submitted that there is no dispute that he was employed by the Respondent as its physician with effect from 1st September 2017 at a gross monthly package of Kshs. 151,560, and he has listed the contract of employment and addendum contract among his documentary exhibits. 2. He submitted that once employment is shown, the employer bears a statutory duty under Section 10(7) of the Employment Act to keep and produce written particulars and records relating to remuneration, leave, and related matters, and that unless the Respondent places before the Court a different and credible record on salary, leave, and remittances, his pleaded terms and computations stand as the best evidence available. 3. On unlawful withholding of wages, the Claimant submitted that despite the Respondent's alleged financial difficulties, he and other employees were requested to continue working up to June 2019, yet their salaries from January 2019 to September 2019 were withheld, with only half salary having been paid in December 2018. He argued that wages are not discretionary benevolence but the primary consideration for labour rendered, and that an employer cannot lawfully keep an employee at work and then plead lack of funds as justification for withholding earned wages, as fair labour practice is not suspended by an employer's commercial inconvenience. 4. It was further submitted that the Respondent's own conduct demonstrates acknowledgment of outstanding dues, averring that the Respondent negotiated through a union process and included him in a proposed settlement, offering Kshs. 273,638 as full and final settlement, conduct he argued is inconsistent with denial of liability and consistent with admission that money remained due, with the only controversy being quantum. He cited [***Komu & 2 others v RRR Kenya Limited [2025] KEELRC 975 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/975/eng%402025-03-27), wherein the Court recognized that non-payment of salary violates the protection of wages under the Employment Act and offends the constitutional right to fair remuneration. 5. On statutory deductions, the Claimant submitted that he discovered tax irregularities and a KRA liability of Kshs. 70,152.92, which has prejudiced his ability to obtain tax compliance, and that he has produced among his documents the tax returns card for the year ending 2019 and a screenshot from KRA showing the said liability. 6. He submitted that Section 19(4) of the Employment Act obliges an employer who deducts amounts from an employee's remuneration pursuant to law to pay the amounts so deducted within the prescribed timelines. Additionally, Section 19(5) criminalizes failure to comply, and Section 19(6) empowers the Court to order refund to the employee and payment to the intended beneficiary using the employer's own funds. 7. He argued that an employee has no direct control over PAYE remittance once the employer deducts or is required to account for it, and that it would be contrary to both justice and law to allow an employer's omission to prejudice an employee's tax standing. He thus urged the Court to order the Respondent to remit the unpaid tax and any attendant lawful charges, penalties, and interest occasioned by its failure to properly account for statutory deductions. 8. On leave pay, the Claimant submitted that he is entitled to payment for accrued leave in the sum of Kshs. 110,928. He submitted that Section 28 of the Employment Act grants an employee not less than twenty-one working days of annual leave with full pay after every twelve consecutive months of service, and that Section 74 requires the employer to keep records of leave entitlement, leave taken, and leave due. 9. He argued that once he asserts that leave remains unpaid or untaken, the evidentiary burden shifts in a practical sense to the employer as the statutory custodian of leave records, and that if the Respondent cannot produce credible leave records demonstrating that leave was taken, commuted, or paid for, the Court ought to find in his favour on that head. 10. On the Respondent's financial distress, the Claimant submitted that an employer who elects to retain labour must pay for it, and that if work was suspended, employees should have been lawfully released and their dues settled in accordance with the law. He argued that Kenyan labour law does not recognize cash-flow constraints as a defence to earned wages, and that to hold otherwise would expose employees to involuntary creditorship, forcing them to finance their employer's operations through unpaid labour in a manner that would offend Article 41 of the Constitution and undermine the protective philosophy of the Employment Act. 11. On limitation, the Claimant submitted that the claim is not framed as a classical unfair termination claim but as an action for earned and unpaid emoluments, statutory remittances, and continuing prejudice that only fully crystallized upon later discovery of the KRA default and the Respondent's later tabulation and proposed settlement in 2024. 12. In support, he cited [***Joseph Kamau & 468 others v G4s Security Services (Kenya) Limited [2015] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1110/eng%402015-05-15), where the Court held that unpaid terminal benefits remained due and owing continuously until paid, whilst candidly acknowledging to the Court that this approach was later reversed by the Court of Appeal in *G4S Security Services (K) Limited v Joseph Kamau & 468 others* [2018] KECA 827 (KLR), which held that unpaid terminal dues do not constitute a continuing injury in the sense required by Section 89 and that time does not stop running because parties are in negotiations. He urged the Court that 13. The Claimant submitted the exact accrual dates require factual interrogation against the contracts, certificate of service, pay records, the 2024 tabulation, and KRA records; that part of the claim, particularly the non-remittance and resulting KRA prejudice discovered in 2025, has a distinct and later factual complexion; and that where the employer's own records and settlement conduct point to acknowledgment and ongoing computation of dues, the Court should be slow to strike out the claim without full evidentiary ventilation. He candidly conceded, however, that as presently pleaded, limitation remains a significant legal vulnerability. 14. It is the Claimant’s submission that he was employed by the Respondent, rendered service, and earned his wages, and that the Respondent cannot lawfully receive the benefit of that labour and then evade the reciprocal duty to pay, remit statutory deductions, and account for leave. 15. He urged the Court to enter judgment against the Respondent in terms of the Statement of Claim, with interest and costs, and that in the event any part of the claim is found to be time-barred, the Court should, where legally permissible, preserve and determine any severable head supported by later-accruing facts or documentary proof, particularly in relation to non-remittance and the prejudice arising therefrom. 16. I have examined all the averments and submissions of the parties herein. From the memorandum of claim filed by the claimant, he worked for respondent up to 3/9/2019. 17. The claimant has sought prayers going beyond the none payment of his salary into none remittance of his tax to KRA. The none payment of tax to KRA is a claim that is still running and which still affects the claimant today as a continuing injury under section 89 of the Employment Act. The preliminary objection will fail for that reason. I will direct the parties to continue with their claim accordingly. Costs in the cause. **Dated, Signed and Delivered virtually at Nairobi this 6th Day of July 2026.** **HELLEN WASILWA** **JUDGE**