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ELRCStruck OutNot stated in judgment

Oyugi v Tourism Promotion Services Limited (Cause E047 of 2025) [2025] KEELRC 2811 (KLR)

Employment and Labour Relations Court
16 October 2025
MMM. Mbarũ
795 words in judgment
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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 is a ruling of the Employment and Labour Relations Court at Mombasa on a Notice of Preliminary Objections dated 12 May 2025 filed by the respondent, Tourism Promotion Services Limited, contending that the claimant's claim for terminal dues, filed on 17 April 2025, was time-barred under section 90 of the Employment Act. The respondent relied on Mukisa Biscuit Manufacturing Ltd v West End Distributors and a line of ELRC authorities holding that a claim filed outside the three-year period under section 90 cannot be sustained for want of jurisdiction. The claimant filed no submissions, instead lodging an application dated 9 September 2025 seeking to amend his pleadings, which was pending before the court. The court, applying the Supreme Court's decision in Erad Suppliers & General Contractors Limited v National Cereals & Produce Board, held that jurisdictional objections must be addressed first. It disapproved the claimant's attempt to circumvent the objections through an amendment application, and took the pleadings as they stood. The pleadings showed employment terminated in April 2020, with the claimant last at the shop floor in 2021; taking the later date, the claim ought to have been filed by 31 December 2024. The reliefs sought were matters regulated by section 90, whose limitation provisions are mandatory - three years for employment injuries and twelve months for continuing injuries. The court found the claim time-barred and that it lacked jurisdiction. The objections were allowed, the claim was struck out, and costs were awarded to the respondent. Judgment delivered in open court at Mombasa on 16 October 2025 by M. Mbarũ, 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 Notice of Preliminary Objections dated 12 May 2025 raising limitation under section 90 of the Employment Act has merit
  2. 2.Whether the claimant's response by way of an application to amend pleadings rather than submissions was a proper response to the objections
  3. 3.Whether the claim filed on 17 April 2025 is time-barred and whether the court lacks jurisdiction over it

Key legal issues

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01

Whether the claim is time-barred under section 90 of the Employment Act

Holding

The claim filed on 17 April 2025, based on employment that terminated in April 2020 with the claimant last at the shop floor in 2021, is time-barred and the court lacks jurisdiction to proceed further

Reasoning

The court took the pleadings as they stand: paragraph 2.2 asserts termination in April 2020 and paragraph 2.9 states the claimant reported back in 2021 but was sent away. Taking the last date as 2021, the claim should have been filed by 31 December 2024. The reliefs sought (notice pay, allowances, service charges, leave, compensation) are regulated under section 90 as injuries or damages, which are subject to the mandatory three-year/ twelve-month limitation periods. Filing in 2025 was outside these periods.

p. 2
02

Jurisdiction of the court over a time-barred employment claim

Holding

Lack of jurisdiction follows from a claim filed outside the three-year period contemplated under section 90 of the Employment Act

Reasoning

Relying on Katana v Kwale Water and Sewerage Company Limited and other authorities cited by the respondent, the court accepted that a claim filed outside the three-year period under section 90 cannot be sustained because the court lacks jurisdiction. Jurisdictional objections must be addressed first, per the Supreme Court in Erad Suppliers & General Contractors Limited v National Cereals & Produce Board.

p. 1
03

Proper response to a preliminary objection

Holding

A party directed to file submissions on a preliminary objection should address it rather than file an application to amend pleadings

Reasoning

The court noted that while court rules allow amendment of pleadings before closure and hearing directions, once seized of a preliminary objection and directed to file submissions, the claimant should have complied. Attempting to circumvent the objections through an amendment application was disapproved, and the pleadings were taken as filed.

p. 2

Legal principles established

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  • Where objections are raised concerning jurisdiction, the court must address the matter first before proceeding on any other issue
  • Section 90 of the Employment Act is mandatory: a claim based on an employment injury must be filed within three years, and a continuing injury within twelve months

Court orders

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  1. 1.The Notice of Preliminary Objections dated 12 May 2025 is allowed
  2. 2.The claim is struck out
  3. 3.Costs to the respondent

The bench

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

MM
majority

Wrote the judgment

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

Relief refused

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Claimant's application dated 9 September 2025 to amend pleadings as a response to the objections

The claimant was directed to file submissions to the objections but instead filed an amendment application, which the court held was not an orderly way of doing court business; the pleadings stand as they are

p. 2

Costs

Costs to the respondent

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.

Objections dated 12 May 2025 are with merit. The claim is hereby struck out. Costs to the respondent.
p. 2Final orders - striking out of the claim
Under section 90 of the Act, the provisions thereof are mandatory. A claim based on an employment injury must be filed within three years, and a continuing injury within twelve months.
p. 2Mandatory limitation periods under the Employment Act
the Supreme Court of Kenya held that where objections are raised concerning jurisdiction, the court must address the matter first before proceeding on any other issue.
p. 2Priority of jurisdictional objections
Circumventing the objections filed through a secondary action of an application to amend pleadings instead is not an orderly way of doing court business.
p. 2Disapproval of responding to preliminary objections by amendment application

Issues in the judgment

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minor

The judgment inconsistently states the date of termination of employment in two places

minor

The judgment elsewhere states the termination date as April 2020 while also recording the claimant as last at the shop floor in 2021

minor

Typographical errors in the judgment ('pts to file', 'shop fioor')

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, "Oyugi v Tourism Promotion Services Limited (Cause E047 of 2025) [2025] KEELRC 2811 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2811/eng@2025-10-16

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