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ELRCDismissedNot stated in the excerpt

Kimani v Hayer Bishani Singh & Sons Ltd (Cause E021 of 2023) [2024] KEELRC 2569 (KLR)

Employment and Labour Relations Court
24 October 2024
JGJacob Gakeri
1,443 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent filed a Notice of Preliminary Objection dated 30th April 2024 contending that the Claimant's suit, filed on 28th April 2023, was statute barred under Section 90 of the Employment Act because the Claimant's employment ended in March 2020. The Claimant, employed as a Quantity Surveyor from 13th October 2016, deponed that he resigned in March 2020 due to unpaid salary arrears but was asked to continue working to complete projects; he exhibited WhatsApp exchanges and payments (including Kshs 73,800 via Mpesa in April 2020 and Kshs 179,008 by cheque in October 2020) indicating continued interaction until January 2021. The Respondent maintained the Claimant absconded on 26th March 2020 after handing an unverified resignation letter, and argued that the Claimant produced no re-engagement contract, time stamps, extension letter or payslips after March 2020, invoking Section 107 of the Evidence Act on burden of proof. The court, applying Mukisa Biscuits, accepted that the objection raised a pure point of law touching on limitation and jurisdiction. However, it found the memorandum of claim and witness statement silent on when and how the parties separated, noted the Respondent's failure to evidence any response to the alleged desertion, and held that the date of separation was a disputed fact only resolvable at hearing. The objection was found unmerited and dismissed, with the suit to proceed to full hearing on merits. Each side was left to bear its own costs. Delivered virtually at Kisumu on 24th October 2024 by Dr. Jacob Gakeri, Judge.

Questions the Court framed

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

  1. 1.Whether the Respondent's Notice of Preliminary Objection meets the threshold of a preliminary objection
  2. 2.Whether the Claimant's suit is statute barred under Section 90 of the Employment Act given the disputed date of separation

Key legal issues

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01

Whether the objection qualified as a true preliminary objection

Holding

The objection, being founded on statutory limitation and hence jurisdiction, met the Mukisa Biscuits threshold

Reasoning

Applying Law JA's classic definition and Sir Charles Newbold VP's formulation, the court found the objection raised a pure point of law because it assailed the suit as statute barred, which would oust the court's jurisdiction, without requiring ascertainment of facts or exercise of discretion at that stage.

p. 3
02

Whether the suit was statute barred under Section 90 of the Employment Act

Holding

The objection was unmerited because the date of separation was disputed and could only be established by evidence at hearing

Reasoning

The memorandum of claim and witness statement were silent on when and how the parties separated. The Respondent alleged the Claimant absconded on 26th March 2020 after an unverified resignation, while the Claimant alleged he continued working until 2021, producing WhatsApp excerpts and payments post-March 2020. The Respondent adduced no evidence of steps taken over the alleged desertion. With no definitive date of separation or payment of dues, limitation could not be determined summarily and the Claimant deserved a hearing on the merits.

p. 3

Legal principles established

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  • A preliminary objection raising limitation and lack of jurisdiction on the face of the pleadings meets the Mukisa Biscuits threshold
  • Where the date of separation is disputed and facts can only be established at hearing, limitation cannot be resolved on a preliminary objection

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 30th April, 2024 is unmerited and is dismissed to enable the parties canvass their cases on merits
  2. 2.No orders as to costs

The bench

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

JG
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; objection based on Section 90 of the Employment Act

Relief refused

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Claimant's prayer for costs of the preliminary objection

The court made no orders as to costs despite dismissing the objection

p. 3

Costs

There shall be no orders as to costs.

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 in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct.
p. 2Definition of preliminary objection (Sir Charles Newbold VP)
It is clear that there are certain facts which can only be evidentiary established at the hearing.
p. 3Limitation cannot be resolved where facts are contested
In the circumstances, it is the finding of the Court that the Respondent’s Notice of Preliminary Objection dated April 30, 2024 is unmerited in this instance to enable the parties canvass their cases for determination on merits.
p. 3Disposition
There shall be no orders as to costs.
p. 3Costs order

Issues in the judgment

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minor

Claimant's documents in answer to the preliminary objection were not filed earlier nor disclosed in earlier filings, as the court itself noted

minor

The judgment twice refers to the objection date inconsistently in format ('30th April, 2024' vs 'April 30, 2024') though the date itself is consistent

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, "Kimani v Hayer Bishani Singh & Sons Ltd (Cause E021 of 2023) [2024] KEELRC 2569 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2569/eng@2024-10-24

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