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Court of AppealPartially AllowedCivil Appeal (E010) of 2022 (as per record; suit below ELRC Suit No. 1090 of 2015)

Afritrack Investments (EA) Limited & another v Okoth & another (Civil Appeal 355 of 2019) [2025] KECA 215 (KLR)

Court of Appeal of Kenya
7 February 2025
1,576 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a Court of Appeal judgment (Musinga, Asike-Makhandia and Ole Kantai, JJAA) delivered at Nairobi on 7th February 2025, allowing an appeal against a ruling of the Employment and Labour Relations Court (Wasilwa, J) which dismissed the appellants' notice of motion dated 21st February 2019 seeking to strike out the respondents' claim in ELRC Suit No. 1090 of 2015 as scandalous, frivolous, vexatious and an abuse of process. The respondents, former employees of the 1st appellant deployed to Angola, alleged unfair working conditions, torture and inhumane treatment amounting to constructive termination. The appellants contended the trial court lacked territorial jurisdiction because the contracts were signed in Angola with Afritrack Angola, a non-party. The trial judge treated the motion as a preliminary objection and dismissed it as unsustainable because it required consideration of facts and evidence. The Court of Appeal agreed, holding that the judge erred: the application was a substantive application supported by affidavit evidence, not a preliminary objection raising a pure point of law in the Mukisa Biscuit sense. The Court further held the judge erred in finding she could not consider the Portuguese contracts, since translated copies were on the record. The Court declined to determine the jurisdictional question itself, as the judge below had not pronounced on it, and remitted the application to the ELRC to be heard by any judge other than Wasilwa, J, with the respondents to bear the costs of the appeal. None of the parties' advocates attended the hearing; the appeal was determined on the appellants' written submissions alone.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in law by treating the appellants' application to strike out as a preliminary objection
  2. 2.Whether the learned judge erred in holding that documents in a language other than English could not be considered by the court
  3. 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

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01

Whether the strike-out application was a preliminary objection

Holding

The learned judge erred by treating a substantive notice of motion supported by affidavit evidence as a preliminary objection.

Reasoning

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.

p. 3
02

Whether documents in a foreign language barred adjudication

Holding

The judge erred in finding she could not consider the Portuguese contracts, as translated copies were on the record.

Reasoning

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.

p. 4
03

Whether the ELRC had territorial jurisdiction over the claim

Holding

The question of jurisdiction was not determined below and was remitted for determination.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.This appeal be and is hereby allowed.
  2. 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. 3.The respondents shall bear the costs of this appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 4

Costs

The respondents shall bear the costs of this appeal.

Quotable passages

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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.
p. 3Definition and scope of a preliminary objection
Determination of a preliminary objection is difierent from that of a substantive application.
p. 3Distinction between preliminary objections and substantive applications
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.
p. 4Final orders - appeal allowed and application remitted

Issues in the judgment

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minor

The impugned ruling is reproduced with repeated paragraph numbering (multiple paragraphs all numbered 18 or 19), suggesting a transcription/numbering defect in the record.

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.