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ELRCDismissedNot stated in the judgment

Luka v Bishop in Charge AIC (K) Machakos Area & another (Appeal E001 of 2024) [2025] KEELRC 1702 (KLR)

Employment and Labour Relations Court
12 June 2025
1,430 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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This was a first appeal to the Employment and Labour Relations Court at Nairobi against a ruling by Hon. Barbara Ojoo, Senior Principal Magistrate, delivered on 14.12.2023, upholding a preliminary objection and striking out the appellant's employment claim as time barred under section 90 of the Employment Act, 2007. The appellant, employed as a Pastor from 2007, was suspended on 05.10.2018 and dismissed by letter dated 30.10.2018. He complained to the 1st respondent, who directed reinstatement and payment of salary arrears, but only one month's salary was paid. He contended that the employment relationship continued until 03.02.2021 when a letter described him as having resigned, and that his suit filed on 16.05.2023 was therefore within time. The Court, re-evaluating the matter as a first appeal, held that the appellant knew he had been dismissed effective 05.10.2018; the promised reinstatement was never implemented, so the parties remained separated from the contract as communicated on 30.10.2018. The three-year limitation period lapsed on 30.10.2021, rendering the suit filed on 16.05.2023 time barred. The preliminary objection was proper, based on undisputed pleaded facts and raising a pure point of law. The trial court's ruling was upheld, the appeal was dismissed with costs, and the Deputy Registrar was directed to return the file to the Machakos Sub-registry, the case being closed.

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 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

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01

Whether the appellant's cause of action accrued on the date of dismissal (October 2018) or on the purported resignation of 03.02.2021

Holding

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

Reasoning

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.

p. 4
02

Whether the preliminary objection based on limitation was proper

Holding

Yes - it was based on undisputed pleaded facts and raised a pure point of law

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs
  2. 2.The ruling by the trial court allowing the preliminary objection is upheld
  3. 3.The Deputy Registrar to return the case file to the Machakos Sub-registry forthwith as the same is closed

The bench

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

majority

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

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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

p. 4

Costs of the appeal to the appellant

Appeal dismissed with costs to the respondents

p. 4

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.

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.
p. 4Limitation under section 90 of the Employment Act
the parties stood separated and freed from the contract of employment as communicated on 30.10.2018
p. 3Accrual of cause of action on dismissal despite unimplemented reinstatement promise
Accordingly, the ruling by the trial court allowing the preliminary objection is upheld.
p. 4Upholding of the trial court ruling
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.
p. 4Final orders and disposition

Issues in the judgment

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minor

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

minor

The case number, full names of the parties and the trial court case number are not stated in the judgment as provided

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, "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.