Anne Njoki Wachira v Kenya County Government Workers Union

1. The Claimant, Anne Njoki Wachira, was employed by the Respondent, Kenya County Government Workers Union, as a Stenographer from 1979 until her retirement in 2018 at the age of 60 years. Upon her retirement, the Claimant was entitled to payment of gratuity. According to the Claimant the Respondent computed his gratuity and LAPTRUST unpaid remittances at Kshs.11,235,387.65 plus a medallion award of Kshs. 8,589,217. The payment was to be through a lump sum pay of Kshs.1,000,000 and the balance by equal monthly instalments of Kshs.100.000. 2. The Respondent did not keep its word after the last instalment made on 6th May 2021 and vide a letter dated 23 rd November 2021, the Respondent raised an issue of overpayment of gratuity to the Claimant and requested a refund of the overpaid amount of Kshs. 2,416,356/-. However, the Claimant avers that the Respondent made written promises and verbal assurances between 2022 and 2025 regarding payment of her gratuity, and even the Respondent's National Executive Council (NEC) approved RULING IN ELRC CAUSE NO. E1135 OF 2025. 2

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payment of her gratuity and communicated the same through the General Secretary. 3. The Respondent never kept its word and the Claimant filed a Memorandum of Claim dated 16th October 2025 seeking payment of the outstanding balance of gratuity of Kshs. 7,239,217.80/=. The Respondent filed Notice of Preliminary Objection dated 24th February 2026 seeking dismissal and/or striking out of the suit with costs on ground that this Court lacks the requisite jurisdiction and competence to entertain, hear and/or determine the same. 4. The Preliminary Objection was disposed by written Submissions dated 1st April 2026 and Further written Submissions. The Respondent’s submissions are dated 26 th May 2026 while the Claimant's Submissions are dated 30 th April 2026. Submissions 5. The Respondent submitted that the Claimant's suit on the ground that it is statutorily time-barred under Section 89 of the Employment Act, 2007, since it was instituted on 19 th RULING IN ELRC CAUSE NO. E1135 OF 2025. 3

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November 2025, more than three years from 6 th May 2021 when the last installment was paid to him, or 23 rd November 2021 when it wrote the letter claiming a refund of overpaid Kshs. 2,416,356. 6. It submitted that the claim before the court does not involve a continuing injury and maintained that it ought to have been filed within three years from the date the cause of action arose. It further submitted that even if the claim for gratuity was to be treated as a continuing breach, the same was not filed within 12 months from the date when the Claimant retired in the year 2018. 7. In view of the foregoing, the Respondent submitted that the court lacks jurisdiction to entertain the suit and urged for the striking out of the suit with costs. For emphasis, reliance was placed on several binding and persuasive court decisions. 8. On the other hand, the claimant submitted that the objection by the respondent does not raise pure points of law as enunciated by the Court of Appeal in Bukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Oraro v Mbaja [2005] 1 KLR 141. He RULING IN ELRC CAUSE NO. E1135 OF 2025. 4

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maintained that evidence is required to establish the disputed date when the cause of action arose. 9. As regards the merits of the objection, the Claimant submitted that the promise to pay by the respondent’s NEC was to expire in 2023 or June 2027 based on the subsequent variations. Therefore the Claimant submitted that the objection is an attempt to avoid a legitimate debt and it should be dismissed and the contested facts regarding acknowledgements and the date when the cause of action arose be tried by adduction of evidence. Issues for determination and analysis. 10. Having considered the Notice of Preliminary Objection, Statement of Claim and the Submissions, the main issues for determination are:a) Whether the Respondent's Notice of Preliminary Objection raises pure points of law; and b) Whether the Claimant's suit is statute-barred and thereby ousting the jurisdiction of this Court. Legal threshold of the objection RULING IN ELRC CAUSE NO. E1135 OF 2025. 5

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11. The law on preliminary objections is well settled. In the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, the Court held that: “A preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication from the pleadings, and which, if argued as a preliminary point, may dispose of the suit.” 12. Law J.A in the same judgment stated that:“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by contract giving rise to the suit to refer the dispute to arbitration.” RULING IN ELRC CAUSE NO. E1135 OF 2025. 6

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13. The objection herein is on grounds that the suit is statute barred and therefore the court lacks jurisdiction. The said points are pure points of law which clearly manifest themselves in the impugned Statement of Claim, Response to the Claim and parties submissions. In the circumstances, I find and hold that the preliminary objection meets the legal threshold enunciated by the Court of Appeal in the above case. 14. The Supreme Court of Kenya in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others (Petition 10 of 2013) [2014] KESC 34 (KLR) cited with approval the decision Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, and affirmed that a proper preliminary objection is one that raises pure points of law, that do not need any further evidence or facts to prove or ascertain. Merits of the objection 15. Section 89 of the Employment Act categorically provides that: - RULING IN ELRC CAUSE NO. E1135 OF 2025. 7

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“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” 16. The Respondent’s case is that the suit ought to have been filed within three years from the date when the cause of action arose. It submitted on different dates for consideration in determining the correct date when the suit ought to have been commenced. The first date cited was 6 th May 2021 when the last payment of her gratuity was made. The second date cited was 23rd November 2021 when it wrote a letter raising the issue of overpayment and requesting for refund from the Claimant. The third date cited was 12 months from the date of retirement in the year 2018, RULING IN ELRC CAUSE NO. E1135 OF 2025. 8

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if the default to pay was to be treated as a continuing breach. 17. The Claimant averred that there were engagements between the parties between 2022 and 2025 whereby the Respondent agreed to pay her the outstanding gratuities and when it defaulted, she filed the suit. She contended that the issue whether suit is statute barred or not should be subjected to trial to enable the parties adduce evidence. 18. I have carefully considered the respective positions of the parties and specifically the pleading by the Claimant that the Respondent promised to pay his gratuity of Kshs.8,589,217 by way of a lump sum of 1000,000 at the end of February 2019 and the balance by way of monthly instalments of Kshs.100,000 until payment in full. The said fact has not been denied. The said instalments would take slightly more than 6 years to complete. She submitted that the last instalment would have been February 2025. 19. I believe the case before the court is special in nature and differs from the court decisions cited by the parties. I say so because, the facts of the case reveal an undertaking by the RULING IN ELRC CAUSE NO. E1135 OF 2025. 9

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Respondent to pay the Claimant’s terminal benefits by instalments until payment in full. It paid some and defaulted and despite promise to pay the defaulted amount, it failed to pay the Claimant and it is now pleading the defence of limitation. The case is distinguishable from the cases cited by the Respondent because in the said cases there was no “agreement for payment of terminal dues by instalments until the payment in full.” 20. There can be no doubt that by the parties agreeing to payment of Kshs. 8,589,217 by instalments of Kshs. 100,000 until payment in full extended the life of the Claimant’s claim for over six years, till sometimes May 2025. In the circumstances, when the Respondent failed to pay the respective instalments from June 2021, the breach became a continuing injury within the meaning of section 89 of the Employment Act. Accordingly, the suit having been filed on 19th November 2025, was not time barred since it was filed within 12 months from May 2025 when the last instalment of her gratuity was due. RULING IN ELRC CAUSE NO. E1135 OF 2025. 10

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21. In conclusion therefore, and, on the basis of the material presented, I over rule the Respondent's Notice of Preliminary Objection dated 24th February 2026. However, for avoidance of doubt, the Respondent will be at liberty to prosecute its defence of limitation for consideration on merits. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Mutua for Claimant Oginga for Respondent RULING IN ELRC CAUSE NO. E1135 OF 2025. 11

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