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Case Brief · caselaw.co.ke
ELRCDismissedELRC Cause No E209 of 2026

Dr. Stephen Mwenje Mbiraru v Patmed Healthcare Limited

Employment and Labour Relations Court of Kenya
8 October 2026
854 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 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 Claimant, a Medical Officer engaged by the Respondent from 5th April 2022, sued alleging constructive dismissal, contending that breaches of fundamental contract terms - including non-remittance of NHIF, NSSF and PAYE dues - forced his resignation effective 28th February 2023. The Respondent filed a Notice of Preliminary Objection arguing the suit was statute barred under section 89 of the Employment Act. It characterised the claim as a continuing injury claim (based on non-remittance of statutory dues) which had to be filed within one year of cessation of the injury, i.e. by 28th February 2024, whereas the suit was filed on 27th February 2026. The Claimant maintained the claim was for constructive dismissal, attracting the three-year limitation period. The court agreed with the Claimant, holding that the claim as pleaded was anchored on constructive dismissal, which is not a continuing injury claim; the alleged non-remittances were merely the reason for resignation, not the cause of action. Applying section 89, the court computed the limitation period from the effective date of resignation (28th February 2023), making 28th February 2026 the last day for filing. The suit, filed 27th February 2026, was therefore within time. The court also applied the Court of Appeal's decision in G4S Security Services (K) Limited v Joseph Kamau, that non-payment of terminal dues constitutes stand-alone claims subject to the three-year period. The preliminary objection was dismissed with costs to the Claimant.

Questions the Court framed

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

  1. 1.Whether the suit is time barred under section 89 of the Employment Act
  2. 2.Whether the claim, as pleaded, is a continuing injury claim subject to the one-year limitation period
  3. 3.Whether the Respondent's preliminary objection should be upheld

Key legal issues

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01

Whether the claim is a continuing injury claim subject to a one-year limitation period

Holding

The claim is anchored on constructive dismissal, which is not a continuing injury claim; the three-year limitation period applies.

Reasoning

The court held that the cause of action is constructive dismissal, not the non-remittance of statutory dues. The alleged non-remittance of NHIF, NSSF and PAYE was merely the reason the claimant resigned and pleaded constructive dismissal, so the one-year continuing-injury window does not apply.

p. 3
02

Whether the suit was filed within the limitation period

Holding

The suit, filed on 27th February 2026, was within the three-year period which expired on 28th February 2026.

Reasoning

The resignation notice took effect on 28th February 2023 per clause 10.1 of the contract. Section 89 therefore gave the claimant until 28th February 2026, and filing on 27th February 2026 was one day within time.

p. 3

Legal principles established

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  • A claim for constructive dismissal is not a continuing injury claim and must be filed within three years of the cause of action arising.
  • Breaches relating to non-payment of terminal dues are stand-alone claims, not continuing injuries, attracting the three-year limitation period.

Court orders

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  1. 1.The Respondent's preliminary objection is dismissed
  2. 2.Costs of the objection are granted to the Claimant

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 and ELRC Procedure Rules

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 claim as presented is clearly anchored on constructive dismissal. A claim for constructive dismissal is not a continuing injury claim which ought to be presented within one year of cessation of the injury complained of.
p. 3Constructive dismissal is not a continuing injury claim
As such, the last day for filing suit in terms of section 89 of the Employment Act was 28th February 2026.
p. 3Computation of limitation period from effective date of resignation
Consequently, the Respondent's preliminary objection is unmerited and is dismissed.
p. 4Disposition - preliminary objection dismissed

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, "Dr. Stephen Mwenje Mbiraru v Patmed Healthcare Limited", Case Analysis (2026). ELRC Cause No E209 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2772/eng@2026-10-08

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