Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment text provided

Board of Management Nzeveni Secondary School v Makumbi (Appeal E001 of 2025) [2025] KEELRC 1846 (KLR)

Employment and Labour Relations Court
26 June 2025
BOByram Ongaya
2,500 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that a worker's suit for unpaid benefits was too late, confirming the three-year employment claim deadline applies even during negotiations.

What this practically means

#

Executive summary

#
The appellant, through the Office of the Attorney General, appealed against a ruling delivered on 31.01.2025 by Chief Magistrate P.N. Gesora dismissing a preliminary objection to a claim for unlawful termination and terminal dues of Kshs 283,606.00. The objection was founded on section 90 of the Employment Act, 2007, which bars actions arising from employment contracts not commenced within three years. The claimant's services were terminated on 30/12/2017 and the suit was filed on 26.06.2023, outside the three-year window. The claimant relied on an amended memorandum of claim alleging that, as a member of the KUDHEIHA Workers union, an agreement was reached at a meeting of 28.05.2019 (the judgment elsewhere refers to minutes of a trade dispute) whereby the appellant undertook to tabulate and pay terminal benefits, and argued that negotiations suspend the limitation clock, citing authority including Rika J's decisions. The Court noted the Court of Appeal's holding in Attorney General v Andrew Maina Githinji that the section 90 time limit is mandatory, and endorsed subsequent decisions that negotiations or alternative dispute resolution do not stop time from running. However, the Court found the trade dispute agreement constituted an acknowledgement of a debt under section 23(3) of the Limitation of Actions Act, operating only within the employment relationship; even on that footing the suit was still filed out of time. The appeal was allowed: the trial court's ruling was set aside, the preliminary objection was upheld, the suit was struck out, and each party was ordered to bear own costs of the appeal and the suit.

Questions the Court framed

#

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

  1. 1.Whether the trial Court erred in dismissing the preliminary objection based on section 90 of the Employment Act, 2007 (limitation)
  2. 2.Whether the agreement in the minutes of a trade dispute of 28.05.2019 rendered the preliminary objection invalid as not based on a pure point of law
  3. 3.Whether the agreement operated as an acknowledgement of a debt or undertaking reviving the cause of action under section 23(3) of the Limitation of Actions Act (Cap 22)

Key legal issues

#
01

Limitation under section 90 of the Employment Act, 2007

Holding

The three-year limitation period had lapsed when the suit was filed; the appellant's preliminary objection should have succeeded

Reasoning

The claimant's services were terminated on 30/12/2017 and the suit was filed on 26.06.2023, well beyond the three years prescribed by section 90. The Court of Appeal in Attorney General v Andrew Maina Githinji held the time limit mandatory, and subsequent decisions confirm that negotiations or alternative dispute resolution processes do not suspend the running of time under section 90.

p. 2
02

Effect of the trade dispute agreement of 28.05.2019 on the preliminary objection

Holding

The agreement did not invalidate the preliminary objection as not based on a pure point of law, but it did operate as an acknowledgement of a debt reviving the cause of action for a limited period under section 23(3) of the Limitation of Actions Act

Reasoning

The existence of the agreement was an undisputed pleaded fact, so the preliminary objection remained a pure point of law. However, because the agreement was concluded as part of the employment relationship and the agreed terms of termination, it amounted to an acknowledgement of the claim, resetting limitation under section 23(3) of the Limitation of Actions Act. Even so, the suit filed on 26.06.2023 still fell outside the reset period.

p. 6

Legal principles established

#
  • Existence of pending criminal or alternative dispute resolution processes does not stop the time of limitation in section 90 of the Employment Act from running
  • An agreement concluded as part of the termination of employment can operate as an acknowledgement of a debt reviving the cause of action under section 23(3) of the Limitation of Actions Act
  • A preliminary objection may be based on undisputed pleaded facts and remain a pure point of law

Court orders

#
  1. 1.The ruling delivered on 31.01.2025 by the trial Court is set aside
  2. 2.The preliminary objection is upheld and the suit struck out
  3. 3.Each party to bear own costs of the appeal and the suit before the trial Court
  4. 4.The Deputy Registrar to return the case file to the Machakos Sub-registry forthwith

The bench

#

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

BO
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court
Not stated
Jurisdiction invoked
Appellate jurisdiction over the trial court's ruling on a preliminary objection (statutory basis not expressly cited in the judgment)

Relief refused

#

Costs of the appeal borne by the respondent

The Court instead ordered each party to bear own costs in view of the circumstances of the case

p. 6

Costs

Each party to bear own costs of the appeal and the suit before the trial Court.

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.

The ruling delivered on 31.01.2025 by the trial Court herein is set aside.
p. 6Disposition - setting aside the trial court ruling
The preliminary objection is upheld and the suit struck out.
p. 6Disposition - striking out the suit
Each party to bear own costs of the appeal and the suit before the trial Court.
p. 6Costs order
it is settled that existence of pending criminal or alternative dispute resolution processes does not stop the time of limitation in section 90 [revised to section 89 ] of the Act from running
p. 5Limitation under section 90 of the Employment Act
The Court finds that indeed the three years of limitation had lapsed by the time the suit was filed on 25.06.2023.
p. 2Finding on limitation

Issues in the judgment

#
minor

The judgment states the employment ran 'from 1/3/2025 to 30/12/2017', an apparent typographical error in the start date of employment

minor

The judgment refers to 'minutes of 28.05.2029' where the surrounding text indicates the meeting was on 28.05.2019

material

The judgment states the agreement 'was concluded on 15.05.2015' while elsewhere it is dated 28.05.2019, creating an internal inconsistency in the limitation computation

minor

The date of filing of the suit is given as 26.06.2023 in the background but 25.06.2023 in the Court's finding

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Board of Management Nzeveni Secondary School v Makumbi (Appeal E001 of 2025) [2025] KEELRC 1846 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1846/eng@2025-06-26

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