Luka v Bishop in Charge AIC (K) Machakos Area & another (Appeal E001 of 2024) [2025] KEELRC 1702 (KLR)
The bottom line
#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 trial Court erred in finding that the suit was time barred under section 90 of the Employment Act, 2007 and thereby proceeding to strike it out
Key legal issues
#Whether the appellant's cause of action accrued on the date of dismissal (October 2018) or on the purported resignation of 03.02.2021
The cause of action accrued in October 2018; the internal reinstatement process never implemented did not suspend limitation, and the suit filed on 16.05.2023 was out of time
The appellant pleaded he was dismissed effective 05.10.2018 per letter dated 30.10.2018 and never resumed duty. Internal processes promising reinstatement were never implemented, so the parties remained separated. His own demand letter of 11.03.2022 confirmed suspension on 5th October 2018. The three-year limitation period therefore lapsed on 30.10.2021, well before the suit filed on 16.05.2023.
Whether the preliminary objection based on limitation was proper
Yes - it was based on undisputed pleaded facts and raised a pure point of law
The preliminary objection rested on the undisputed pleaded fact that the appellant was dismissed by letter dated 30.10.2018, and raised a pure point of law namely that the statutory limitation period had expired when the suit was filed. It therefore qualified as a proper preliminary objection and the trial court was entitled to uphold it and strike out the claim.
Legal principles established
#- The three-year limitation period under section 90 of the Employment Act, 2007 runs from the date of dismissal communicated to the employee, notwithstanding unimplemented promises of reinstatement
- On a first appeal, the court re-evaluates the evidence but will not disturb the trial court's decision unless it misdirected itself
Court orders
#- 1.The appeal is dismissed with costs
- 2.The ruling by the trial court allowing the preliminary objection is upheld
- 3.The Deputy Registrar to return the case file to the Machakos Sub-registry forthwith as the same is closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court (Machakos)
- Not stated
- Jurisdiction invoked
- First appeal under the Court's appellate jurisdiction over the trial court ruling on limitation under section 90 of the Employment Act, 2007
Relief refused
#Setting aside of the trial court's ruling delivered on 14.12.2023
The trial court did not err; the cause of action arose in October 2018 and the three-year limitation period under section 90 had lapsed before the suit was filed
Costs of the appeal to the appellant
Appeal dismissed with costs to the respondents
Costs
The appeal is dismissed with costs to the respondents
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.
Thus, the three years of limitation of action under section 90 of the Employment Act, 2007 had lapsed on 30.10.2021 while the suit was filed belatedly on 16.05.2023.
the parties stood separated and freed from the contract of employment as communicated on 30.10.2018
Accordingly, the ruling by the trial court allowing the preliminary objection is upheld.
In conclusion the appeal is hereby dismissed with costs and the Deputy Registrar to return the case file to the Machakos Sub-registry forthwith as the same is closed.
Issues in the judgment
#The judgment states the appellant failed to file suit 'by filing the suit on or before 30.10.2018', which appears to be an error for 30.10.2021, the date of lapse of limitation stated earlier
The case number, full names of the parties and the trial court case number are not stated in the judgment as provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luka v Bishop in Charge AIC (K) Machakos Area & another (Appeal E001 of 2024) [2025] KEELRC 1702 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1702/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.