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ELRCDismissedNot stated in the judgment

Mbaja v County Government of Migori & another (Cause E041 of 2023) [2025] KEELRC 1194 (KLR)

Employment and Labour Relations Court
30 April 2025
1,422 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 29 claimants, describing themselves as former casual workers of the respondent with service of between 4 and 14 years, sued on 19th June 2023 alleging constructive dismissal when their names were omitted from a list published by the respondent. They sought declarations that the termination of 15th June 2023 was wrongful, unfair and unlawful, reinstatement, and engagement on permanent terms. The respondent filed a Notice of Preliminary Objection dated 10th July 2023 contending that the claims were barred by limitation under Section 90 of the Employment Act and that the claimants had not exhausted the dispute-resolution machinery under Section 87(1). The respondent argued that the claimants were on fixed-term contracts that expired in 2013, 2014 and 2020 without renewal. The claimants filed no submissions and did not appear. The court, applying Mukisa Biscuit and the Supreme Court's decision in Aviation and Allied Workers Union, held that a preliminary objection must be a pure point of law with no contest as to facts. The respondent's assertions about the claimants' employment status were evidential matters requiring a full hearing, and the exhaustion ground was abandoned. Striking out being a draconian step, and a claimant being entitled to pursue a claim unless it is shown shortly and conclusively to be bound to fail, the objection was dismissed with no orders as to costs, and the matter was set down for hearing on a priority basis.

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 dated 10th July 2023 raising limitation under Section 90 (and Section 89) of the Employment Act and exhaustion under Section 87(1) of the Employment Act is a competent preliminary objection on a pure point of law
  2. 2.Whether the claimants' suit is time barred under Section 90 of the Employment Act
  3. 3.Whether the suit should be struck out on the preliminary objection

Key legal issues

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01

Whether the limitation objection under Section 90 of the Employment Act was a competent preliminary objection

Holding

It was not competent, because the respondent's case rested on contested factual assertions about fixed-term contracts that expired in 2013, 2014 and 2020, which can only be determined after hearing both sides

Reasoning

The court applied Mukisa Biscuit and the Supreme Court's Aviation and Allied Workers Union test that a preliminary objection must be a pure point of law with no contest as to facts. The respondent's assertion that the claimants served under fixed-term contracts that expired without renewal was an evidential matter. The claimants had also not revealed all facts they intended to rely on, implying a contestation of facts that precludes determination at a preliminary stage.

p. 3
02

Whether the exhaustion ground under Section 87(1) of the Employment Act was argued

Holding

The ground was not argued and was effectively abandoned by the respondent

Reasoning

The court noted the respondents did not submit on the exhaustion requirement under Section 87(1) of the Employment Act and could not determine an unargued ground. The objection therefore fell to be determined solely on the limitation ground, which failed as a factual contest.

p. 2
03

Whether striking out the suit was an appropriate remedy

Holding

No, striking out is draconian and should not be resorted to otherwise than in plain instances; the claim must proceed to trial

Reasoning

Relying on Yaya Towers and related authorities, the court held that a claimant is entitled to pursue a claim however implausible unless the defendant demonstrates shortly and conclusively that the claim is bound to fail. The respondent had not done so because the limitation question turned on disputed facts.

p. 3

Legal principles established

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  • A preliminary objection may only be raised on a pure question of law where there is no proper contest as to the facts
  • A plaintiff is entitled to pursue a claim however implausible unless the defendant can demonstrate shortly and conclusively that it is bound to fail
  • Striking out a pleading or suit is a draconian step to be reserved for plain instances

Court orders

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  1. 1.The respondent's Notice of Preliminary Objection dated 10th July 2023 is dismissed
  2. 2.No orders as to costs
  3. 3.The matter to be fixed for hearing on a priority basis

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007; delivery of judgment guided by Article 159(2)(d) and Article 48 of the Constitution

Relief refused

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Respondent's request that the suit be struck out/time barred under Section 90 of the Employment Act

The objection depends on ascertaining facts about the claimants' employment status, which cannot be resolved on a preliminary objection

p. 3

Costs

No orders as to costs (dismissed with 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.

The upshot of the foregoing is that the respondent's Notice of Preliminary Objection dated 10th July, 2023 lacks merit and it is accordingly dismissed with no order Orders as to costs.
p. 3Final orders - dismissal of preliminary objection and costs
Thus, a Preliminary Objection may only be raised on a pure question of law. To discern such point of law the court has to be satisfied that there is no proper contest as to the facts
p. 3Test for a preliminary objection
The allegations made by the respondents about the employment status of the claimants is largely an evidential matter which can only be reconciled after hearing both sides and making a determination.
p. 3Factual disputes cannot ground a preliminary objection
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. 2Nature of a preliminary objection (Newbold P, Mukisa Biscuit)
The matter be fixed for hearing on priority basis.
p. 3Final orders - priority hearing

Issues in the judgment

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minor

The judgment variously refers to the limitation provision as Section 90 and Section 89 of the Employment Act for the same objection

minor

The judgment bears the word 'DRAFT' at the foot of the document

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, "Mbaja v County Government of Migori & another (Cause E041 of 2023) [2025] KEELRC 1194 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1194/eng@2025-04-30

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