Afritrack Investments (EA) Limited & another v Okoth & another (Civil Appeal 355 of 2019) [2025] KECA 215 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that strike-out applications relying on evidence are not preliminary objections, sending an employment dispute over Angola work contracts back to the employment court for a fresh hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge erred in law by treating the appellants' application to strike out as a preliminary objection
- 2.Whether the learned judge erred in holding that documents in a language other than English could not be considered by the court
- 3.Whether the ELRC lacked jurisdiction to try and determine the respondents' claim on the ground that the cause of action arose outside its territorial jurisdiction
Key legal issues
#Whether the strike-out application was a preliminary objection
The learned judge erred by treating a substantive notice of motion supported by affidavit evidence as a preliminary objection.
The application was brought under sections 1A, 1B and 3A of the Civil Procedure Act, rule 17(1) of the ELRC Procedure Rules and Order 2 Rule 15 of the Civil Procedure Rules, supported by an affidavit with annexures and opposed by affidavits and grounds. Determination of such an application requires consideration of facts and evidence, which takes it outside the Mukisa Biscuit definition of a preliminary objection as a pure point of law argued on assumed pleaded facts. The first ground of appeal was therefore upheld.
Whether documents in a foreign language barred adjudication
The judge erred in finding she could not consider the Portuguese contracts, as translated copies were on the record.
The Court perused the record of appeal and found translated copies of the contract at pages 57 to 64. The learned judge was therefore able to read and understand the terms of the contracts, and her statement that the court was unable to determine the contents of the foreign-language documents was wrong. The second ground of appeal succeeded on the appellants' submissions that translated copies existed on record.
Whether the ELRC had territorial jurisdiction over the claim
The question of jurisdiction was not determined below and was remitted for determination.
Because the learned judge erroneously framed the application as a preliminary objection, she never pronounced herself on whether the court had jurisdiction over the respondents' claim. The Court declined to determine the jurisdictional question in the first instance on appeal and instead remitted the application to the ELRC to be heard by any judge other than Wasilwa, J. The jurisdictional issue therefore remains open for the trial court.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be determined with reference to affidavit evidence or disputed facts; a substantively supported application is not a preliminary objection.
Court orders
#- 1.This appeal be and is hereby allowed.
- 2.The respondents' application dated 21st February 2019 before the ELRC is remitted to that court to be heard by any judge apart from Wasilwa, J.
- 3.The respondents shall bear the costs of this appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- ELRC Suit No. 1090 of 2015 (ruling on notice of motion dated 21st February 2019)
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act against a ruling of the Employment and Labour Relations Court
Relief refused
#Prayer that the respondents' claim before the ELRC be struck out by this Court
The learned judge below did not pronounce herself on the issues raised, so the Court declined to determine the striking-out question itself and remitted the application
Costs
The respondents shall bear the costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A preliminary objection is determined on the basis that it raises a pure point of law, which is argued on the assumption that all the facts pleaded are correct, and therefore a court cannot consider the evidence adduced by way of affidavits.
Determination of a preliminary objection is difierent from that of a substantive application.
a. This appeal be and is hereby allowed. b. The respondents' application dated 21st February 2019 before the ELRC is remitted to that court to be heard by any judge apart from Wasilwa, J. c. The respondents shall bear the costs of this appeal.
Issues in the judgment
#The impugned ruling is reproduced with repeated paragraph numbering (multiple paragraphs all numbered 18 or 19), suggesting a transcription/numbering defect in the record.
The judgment does not state the appeal number under which it was filed; only the suit number in the court below (ELRC Suit No. 1090 of 2015) appears.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Afritrack Investments (EA) Limited & another v Okoth & another (Civil Appeal 355 of 2019) [2025] KECA 215 (KLR)", Case Analysis (2025). Civil Appeal (E010) of 2022 (as per record; suit below ELRC Suit No. 1090 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/215/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.