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Court of AppealDismissedELRC Cause No. 806 of 2017 (appeal from ruling delivered 11th June 2018)

Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Wrigley Company (East Africa) Ltd & another (Civil Appeal 459 of 2019) [2025] KECA 2021 (KLR)

Court of Appeal
28 November 2025
6,058 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed a union's 2017 unfair termination claim was five years too late: employment claims must be filed within three years of termination.

What this practically means

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Executive summary

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This Court of Appeal judgment (Musinga, Kiage and Gatembu Kairu, JJ.A) dismisses a union's appeal against an Employment and Labour Relations Court ruling (Wasilwa, J., 11th June 2018) that upheld the 1st respondent's preliminary objection and dismissed the union's claim on behalf of grievants as statute-barred under section 90 of the Employment Act. The union had pleaded that the grievants, previously direct employees, were shifted to fixed-term contracts under the 2nd respondent through outsourcing agreements and were locked out and deemed terminated on or about 29th May 2012, yet filed suit only on 2nd May 2017. The appellant argued that the objection was defective for lack of a statement of defence (relying on Stephen Onyango Achola), that the timing of termination was a disputed factual issue, and that the pendency of ELRC Petition No. 22 of 2012 deferred accrual of the cause of action. The Court rejected all three arguments. It distinguished Stephen Onyango Achola as confined to cases where a defence omitting limitation had been filed, and followed Bhupinder Singh Dogra in holding that limitation may be raised in limine where apparent on the claimant's own pleadings. It held that the cause of action accrued on the pleaded termination date; even using the July 2013 judgment in the related petition, the 2017 claim was out of time. Parties being bound by their pleadings, the trial court was entitled to determine the objection without evidence. The Court affirmed that equity cannot override an express statutory time-bar and dismissed the appeal with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the trial court was right to uphold the preliminary objection on the basis that ELRC Cause No. 806 of 2017 was statute-barred under section 90 of the Employment Act
  2. 2.Whether a preliminary objection on limitation could properly be raised despite the absence of a statement of defence
  3. 3.Whether the pendency of ELRC Petition No. 22 of 2012 suspended or deferred the accrual of the cause of action
  4. 4.Whether determining when termination of employment occurred required resolution of disputed facts, rendering the preliminary objection incompetent

Key legal issues

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01

Whether limitation could be raised by preliminary objection without a defence

Holding

Yes. A limitation objection taken in limine, apparent on the face of the claimant's own pleadings, is properly raised by preliminary objection; Stephen Onyango Achola is confined to cases where a defence was filed without a limitation plea.

Reasoning

The court distinguished Stephen Onyango Achola, where a defendant who had filed a defence omitting limitation later sought to invoke it. Here the 1st respondent filed a notice of preliminary objection at the outset anchored on dates in the memorandum of claim, so there was no ambush and no further pleading was required. The court relied on Bhupinder Singh Dogra, where an objection on limitation was upheld despite no defence having been filed.

p. 9
02

When the cause of action accrued

Holding

The cause of action for unfair termination accrued on the pleaded date of termination, 29th May 2012; the claim filed on 2nd May 2017 was outside the three-year period under section 90 (now 89) of the Employment Act.

Reasoning

The appellant's memorandum of claim expressly pleaded that all employees were locked out and their services deemed terminated on or about 29th May 2012. Even taking the judgment date in the related Petition No. 22 of 2012 (31st July 2013) as the starting point, the 2017 claim would still be out of time. Limitation is not a discretionary indulgence and equity cannot override an express statutory bar.

p. 10
03

Whether the preliminary objection required resolution of disputed facts

Holding

No. The trial court was bound to proceed on the appellant's own pleaded version that termination occurred on 29th May 2012; no factual enquiry was necessary.

Reasoning

A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct (Mukisa Biscuit). The appellant pleaded positively that the lock-out and termination occurred on or about 29th May 2012 and pleaded no uncertainty. Having framed its case on that footing, it could not resile when it became tactically convenient.

p. 10

Legal principles established

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  • A plea of limitation may be raised by way of preliminary objection at the outset where the limitation issue is apparent on the face of the plaintiff's pleadings, even where no statement of defence has been filed
  • The cause of action for wrongful or unfair termination of employment accrues on the date of termination, and the pendency of related proceedings does not alter the statutory position that time runs from that date
  • Parties are bound by their pleadings and cannot depart from their own pleaded position when it becomes tactically convenient to do so
  • Equity cannot override an express statutory time-bar; limitation statutes are not a discretionary indulgence for dilatory litigants

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Nairobi
ELRC Cause No. 806 of 2017 (ruling on Notice of Preliminary Objection)
Jurisdiction invoked
First appeal to the Court of Appeal against a decision of the Employment and Labour Relations Court (employment and labour relations jurisdiction)

Relief refused

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Setting aside the trial court's ruling and remitting the matter for a full hearing on the merits

The claim was statute-barred under section 90 of the Employment Act; the preliminary objection was properly grounded on the appellant's own pleadings

p. 10

Costs

The appeal is dismissed with costs to the respondents.

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.

In the end, this appeal is without merit and it is hereby dismissed with costs to the respondents.
p. 10Final orders - dismissal of appeal
In the circumstances, we find no basis for interfering with the decision of the trial court. The inescapable conclusion is that ELRC Cause No. 806 of 2017 was statute-barred and the trial court was correct to uphold the preliminary objection and dismiss the suit for want of jurisdiction.
p. 10Affirmance of the trial court's dismissal for want of jurisdiction
Contrary to the suggestion by the appellant, this Court did not hold that a defendant is barred from raising limitation in limine by way of a preliminary objection at the outset where the limitation issue is apparent on the face of the plaintiff's pleadings.
p. 9Limitation by preliminary objection without a defence
The existence of parallel proceedings or the observations made by the bench in Petition No. 22 of 2012 regarding the plight of the employees and the possibility of relief had they quantified their claims does not alter the statutory position that time begins to run from the date of termination.
p. 10Accrual of cause of action notwithstanding pending proceedings
In any case, equity cannot override an express statutory time-bar.
p. 10Equity and statutory limitation

Issues in the judgment

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minor

The date of the 1st respondent's Notice of Preliminary Objection is inconsistent within the judgment: it is given as 24th January 2017 in the opening paragraph but as 24th July 2017 in the account of the response to the Memorandum of Claim, the latter being consistent with the Memorandum of Appearance dated 25th May 2017.

minor

The trial court is referred to as 'the Employment and Labour Relations Court (ELC)' although ELRC is the correct abbreviation for the Employment and Labour Relations Court, and it is elsewhere described as the forum in which ELRC Cause No. 806 of 2017 was filed.

minor

The industrial cause in which the outsourcing arrangement was first found unlawful is given as Cause No. 76 of 2008 in one passage and as Industrial Cause No. 76 of 2012 in the appellant's submissions.

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, "Bakery Confectionery Food Manufacturing & Allied Workers Union (K) v Wrigley Company (East Africa) Ltd & another (Civil Appeal 459 of 2019) [2025] KECA 2021 (KLR)", Case Analysis (2025). ELRC Cause No. 806 of 2017 (appeal from ruling delivered 11th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2021/eng@2025-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.