Njoroge v Judicial Service Commission & another (Cause 2176 of 2012) [2013] KEIC 2 (KLR)
The bottom line
#Kenya's Industrial Court struck out an employment claim filed more than three years after the dispute, confirming that waiting too long ends your case.
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 objection raised by the 1st Respondent qualifies as a preliminary objection on a point of law
- 2.Whether the Claimant's suit, founded on a contract of service and arising from events of March 27, 2008, was filed outside the three-year limitation period prescribed by Section 90 of the Employment Act, 2007
- 3.Whether limitation goes to jurisdiction such that the claim must be struck out
Key legal issues
#Whether the objection was a proper preliminary objection on a point of law
Yes - a plea of limitation is a point of law capable of disposing of the suit and aptly fits the definition of a preliminary objection
The court adopted the classic definition in Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd, where Law J.A. identified a plea of limitation as an example of a preliminary objection, and Sir Charles Newbold described it as a pure point of law argued on the assumption that all facts pleaded by the other side are correct, incapable of being raised where facts must be ascertained or discretion exercised.
Whether the claim was statute barred under Section 90 of the Employment Act 2007
Yes - the cause of action arose on March 27, 2008 and the suit should have been filed by March 27, 2011; it was not, and Section 90 precludes instituting such a claim outside three years
The court held that the limits of the court's authority are imposed by statute, and Section 90 of the Employment Act 2007 bars any civil action or proceeding based on the Act or a contract of service unless commenced within three years of the act, neglect or default complained of. Since the suit was filed beyond that period and no reasons for delay or basis for extension were shown, the claim was statute barred.
Whether limitation goes to jurisdiction, requiring the suit to be struck out
Yes - following Thuranira Karauri v. Agnes Ndeche and the Lillian S principle, once the issue arises it must be disposed of in limine, and an out-of-time claim is amenable to striking out
The court relied on the Owners of the Motor Vessel 'Lillian S' for the principle that jurisdiction is everything and a court downs tools the moment it holds it is without jurisdiction, and on Thuranira Karauri v. Agnes Ndeche for the proposition that limitation goes to jurisdiction. It also adopted Lady Justice Maureen Onyango's reasoning in Paterson Waweru Thinwa v. Judicial Service Commission that a dispute filed out of time is amenable to striking out.
Legal principles established
#- A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised
- Limitation goes to jurisdiction, and a claim which is time barred must be disposed of in limine and struck out
- Under Section 90 of the Employment Act 2007, no civil action or proceeding based on the Act or a contract of service shall be instituted unless commenced within three years of the act, neglect or default complained of
Court orders
#- 1.The Claim is struck out
- 2.Costs to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- The jurisdiction of the Industrial Court as delimited by statute, including Section 90 of the Employment Act, 2007 on limitation of actions arising from contracts of service
Relief refused
#The Claimant's claim and the reliefs sought therein
The suit was filed outside the three-year limitation period under Section 90 of the Employment Act 2007 and limitation goes to jurisdiction
Costs
Costs to the 1st Respondent
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.
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
I am persuaded by her reasoning that such a dispute, as this one, which is filed out of time is amenable to striking out.
The Claim is struck out with costs to the 1st Respondent. It is so ordered.
Issues in the judgment
#The judgment does not state the title or cause number of the claim, and the 1st and 2nd Respondents are never identified by name.
The text of paragraph 1 is garbled, with the submission about the three-year period and the coming into effect of the Employment Act 2007 interleaved with other text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Judicial Service Commission & another (Cause 2176 of 2012) [2013] KEIC 2 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2013/2/eng@2013-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.