Margaret Muthoni Muiga v Kenya County Government Workers Union

2. THAT consequently, this Honorable Court lacks the requisite jurisdiction and competence to entertain, hear, and/or determine the instant claim. 3. THAT, therefore, the instant suit is frivolous, scandalous, vexatious, misconceived, hopeless, a non-starter, and an abuse of the Court process, and is thus a suitable candidate for dismissal and/or striking out with costs to the Respondent herein. Respondent’s Submissions 2 On whether the Preliminary Objection is competent, the Respondent submitted that a proper preliminary objection raises pure points of law, founded on uncontested facts, which if upheld would dispose of the suit without the need for evidence. 3 It relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, as cited by the Supreme Court in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR): "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... It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact Page 2 of 14

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has to be ascertained or if what is sought is the exercise of judicial discretion." 4 It also relied on George Oraro V Barak Eston Mbaja [2005] eKLR, Elena D. Korir v Kenyatta University & 4 others [2017] eKLR and Catherine Kawira v Muriungi Kirigia [2016] KEHC 5758 (KLR), wherein the Courts upheldthat a preliminary objection must not be mixed up with facts that are in dispute and need to be proved. 5 The Respondent argued that limitation is not a mere technicality but goes to the jurisdiction of the Court. It cited Bosire Ogero v Royal Media Services [2015] eKLR, where the Court held: "The issue of limitation goes to the jurisdiction of court to entertain claims and therefore if a matter is statute barred, the court has no jurisdiction to entertain the same." 6 In reply to the Claimant's argument that the objection depends on disputed facts, the Respondent submitted that a preliminary objection can be based on facts as long as those facts are not disputed and come from the pleadings; and relied on Avtar Singh Bhamra & another v Oriental Commercial Bank, Kisumu HCCC No. 53 of 2004. It argued that the real question is not whether it made promises to the Claimant or paid her in part, but Page 3 of 14

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when her cause of action arose. It submitted that this date appears in the Claimant's own pleadings. 7 The Respondent pointed to paragraph 8 of the Memorandum of Claim, where the Claimant states that she received her last instalment of gratuity on 6 th May 2021. It also pointed to paragraph 9, where she states that by letter dated 23rd November 2021 the Respondent told her she had been overpaid and asked for a refund. It argued that neither party disputes these facts. It submitted that the Claimant cannot now describe the same letter, which demanded a refund, as a promise to pay her. 8 The Respondent submitted that the Claimant's statement at paragraph 10 of her claim, that she was paid Kshs. 50,000 on 8th July 2025, is not believable, since the Respondent had stopped payments in 2021 and had demanded a refund. It submitted that the verbal promises the Claimant says were made between 2022 and 2025 are not supported by any letter or conduct, and the Court cannot simply assume them. In its view, these alleged promises are only an attempt to extend the time allowed by law. 9 On whether the claim is time-barred, the Respondent relied on Section 89 of the Employment Act, 2007, which provides: "Notwithstanding the provisions of section 4(1) Page 4 of 14

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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." 10 It submitted that the Claimant worked for the Respondent as a messenger and cleaner from 1980 until she retired in 2018. Her claim for unpaid gratuity arises from her contract of service, and she was therefore required to file it within three years. 11 On when the cause of action arose, the Respondent relied on Jitendra Liladhar Nagda &3 others v Willis Ouma Ondiek & another [2021] KEELC 1510 (KLR), which adopted Lord Diplock's definition in Letang v Cooper [1964] 2 All ER 929 that a cause of action is: "simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person." 12 Applying this, the Respondent's main argument was that the cause of action arose when payments stopped on 6 th May 2021, or at the latest when it disputed the gratuity on 23rd November 2021. The three years therefore ended on 23rd November 2024. Since the claim was filed on 19 th Page 5 of 14

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November 2025, it was filed about a year late. The Respondent contended that the Claimant was not diligent in pursuing her Amalgamated Commercial rights, Limited Bank and & Limited relied on Benjoh another v Kenya [2014] eKLR for the principle that equity helps those who are vigilant, not those who delay. 13 In the alternative, the Respondent submitted that in employment claims time starts to run when the employment ends. It relied on Dzombo v Kenya Power & Lighting Company [2026] KEELRC 45 (KLR), which followed Limited Attorney General & another v Andrew Maina Githinji & another [2016] eKLR. It also relied on Siro v Waluse & 2 others [2022] KEELRC 13256 (KLR), which relied on the Court of Appeal decision in G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] eKLR to hold that, except for continuing injury, time runs from the end of the contract and not from the date the employer failed to pay a particular benefit. Since the Claimant retired on 31st December 2018, the Respondent argued that she ought to have filed her claim by 31 st December 2021. 14 The Respondent further submitted that even if unpaid gratuity were treated as a continuing injury, the Claimant would have had only twelve months from her retirement Page 6 of 14

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to file her claim, and that period also expired long ago. It added that, as held in Central Bank of Kenya v Davies Kivieko Muteti [2009] eKLR, gratuity is not a right given by statute but a benefit that depends on the contract or the employer's policy. For this reason, unpaid gratuity is not a continuing injury in the way unpaid pension may be. 15 The Respondent submitted that Section 89 is mandatory and the Court has no power to extend the time it sets, whether because of a promise to pay, an acknowledgment of the debt or part payment. It relied on Njunge v Muasya [2024] KEELRC 265 (KLR), which held that once the three years pass no civil action shall lie. It also relied on Dzombo (supra), where the Court, following Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] eKLR and David Ngugi Waweru v Attorney General & another [2017] eKLR, held that the time under Section 89: "is not elastic and, hence, incapable of enlargement." 16 The Respondent further relied on Kamande v Kenya Institute of Management [2026] KEELRC 732 (KLR) wherein the Court refused to allow a claim to be filed out of time even though the employer had repeatedly promised to pay the employee's dues. It also cited Kenya Institute of Management v Wakhanu [2025] KEELRC 3172 (KLR), where a claim for arrears Page 7 of 14

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filed more than three years after the last payment fell due was held to be time-barred. 17 In response to the Claimant's authorities, the Respondent argued that the Claimant's reliance on Mogas Kenya Limited v Spin Masters Limited & another [2018] KEHC 10215 (KLR) 0is misplaced. The case was a commercial dispute, not an employment one. It was decided under Section 23 of the Limitation of Actions Act, which allows time to start afresh after part payment or acknowledgment of a debt. Section 89 of the Employment Act has no such exception. In addition, in Mogas the date of the part payment was not stated in the plaint, while in this case the Claimant herself states that the last instalment was paid on 6th May 2021. 18 Relying Workers on Nzoka v Kenya County Government Union [2024] KEELRC 1439 (KLR), the Respondent submitted that the claim in that case was filed within time, and the Court only decided whether the employee was owed gratuity, not whether the claim was time-barred. It argued that each case must be decided on its own facts, and that there is no evidence that its National Executive Council approved payment of gratuity to the Claimant. 19 On legitimate expectation, the Respondent denied making any promise to the Claimant. It submitted that, not being Page 8 of 14

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a public body, the doctrine does not apply to it. In any event, it argued that a promise cannot override a time limit set by statute, relying on Republic & another v National Employment Authority & 3 others; Middle East Consultancy Services Ltd (Ex parte Applicant) [2018] KEHC 9449 (KLR):"There cannot be legitimate expectation against the clear provisions of a statute." 20 It is the Respondent’s submission that the question before the Court at this stage is not whether the Claimant is owed gratuity, but whether she filed her claim in time. It argued that the objection comes from the pleadings, does not require a trial, and shows that the claim was filed out of time. It urged the Court to uphold the Preliminary Objection and dismiss the claim with costs. Claimant’s Submissions 21 On whether the Preliminary Objection raises pure points of law, the Claimant relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, where the Court held that a preliminary objection must raise a pure point of law, argued on the basis that all the facts pleaded by the other side are correct, and cannot be raised where any fact needs to be established. She also relied on Oraro v Mbaja [2005] eKLR, where Ojwang J. (as he then was) held that a Page 9 of 14

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preliminary objection must not be mixed up with facts that are in dispute and must be proved through evidence. 22 The Claimant submitted that the Respondent's objection is heavily mixed up with disputed facts. She identified three: whether the Respondent made a written promise to pay her on 23rd November 2021, whether it made verbal promises to her between 2022 and 2024, and whether its letter of 28th April 2025 was a final refusal to pay or just an ordinary letter. She pointed out that at paragraphs 21 and 22 of its own submissions, the Respondent denies making any promises to her and denies her claim of legitimate expectation. In her view, disputed matters of this kind cannot support a preliminary objection. 23 The Claimant submitted that these facts can only be settled through evidence, cross-examination and the Court's discretion, and that a preliminary objection cannot be used as a shortcut to avoid a full hearing. She relied on J E N v D O K [2018] KECA 516 (KLR), where the Court of Appeal confirmed that a preliminary objection must be based on facts that are not disputed. She therefore urged that the objection be dismissed. 24 On whether the suit is time-barred, the Claimant relied on Mogas Kenya Limited v Spin Masters Limited & another [2018] KEHC 10215 (KLR), in which the High Court applied Section 23 of the Limitation of Actions Act, Page 10 of 14

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which provides that where a debt is acknowledged or partly paid, the right to sue arises afresh on the date of that acknowledgment or payment. The Court held that it could not decide the objection on limitation because it first needed to establish when the part payment was made. The Claimant submitted that the same principle applies to claims under the Employment Act. 25 She argued that the Respondent promised to pay the balance of Kshs. 6,728,000 in monthly instalments of Kshs. 100,000, so that the last instalment would only fall due in January 2025. If time is counted from the date each instalment became due, it could only start to run in 2025. She further argued that the Respondent changed the payment plan on its own by reducing the instalments, which stretched the payment period beyond 2025, and on her reading beyond 2027. 26 The Claimant relied heavily on Nzoka v Kenya County Government Workers Union [2024] KEELRC 1439 (KLR), a claim by another retiree of the same Respondent. In that case the Court held: "Once the Treasurer acted on the advice of the General Secretary, and computed gratuity, it was binding on the Respondent. It was not for Kang'ethe or the General Secretary, to rework the figures years later, or decline payment to the Claimant, a septuagenarian, who is solely dependent on this payment, in his golden years." The Page 11 of 14

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Court further held: "The bottom line is that gratuity was payable, not only to the Claimant, but to other retirees; resolution was made by NEC to pay; the General Secretary instructed the Treasurer to compute the Claimant's gratuity; the Treasurer computed; the Respondent paid part of what was computed in instalments... and lastly, the Respondent reneged on payments, warranting this unnecessary litigation." 27 Relying on Nzoka, the Claimant argued that once the Respondent's National Executive Council approves gratuity and tells the retiree about it, the terms of that approval can be enforced. The Respondent's own failure to pay cannot then be used to defeat her claim. She submitted that the Respondent's NEC made a promise to her that was to run until 2025, or beyond 2027 after the instalments were reduced. The Respondent, she argued, cannot ask the Court to help it benefit from its own failures at the expense of a retiree. 28 On the Respondent's reliance on the letter of 23 rd November 2021 as the date when time started to run, the Claimant submitted that the letter is evidence that has not yet been produced in court. She submitted that its meaning and effect can only be decided at the trial, and that disputed evidence cannot preliminary objection. Page 12 of 14 be the basis of a

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29 On the Respondent's alternative argument that time started to run when she retired, the Claimant argued that this would make the Respondent's own calculation of her gratuity meaningless. It would also mean that her claim was bound to fail from the start, simply because she had retired. She maintained that, following Nzoka, gratuity approved by the NEC and communicated to a retiree is enforceable, whatever the date of retirement. 30 It is the Claimant’s submission that the objection is weak and without substance. It does not raise a pure point of law, since the Court would first have to establish disputed facts about the Respondent's acknowledgment of the debt and when the continuing injury ended. 31 The Claimant submitted that the Respondent, having failed to honor its own approvals and payment timelines, cannot now rely on those failures. She urged the Court to dismiss the Preliminary Objection with costs and allow the suit to proceed to a full hearing on its merits. 32 I have examined all the averments and submissions of the parties herein. The respondent applicant has raised a preliminary objection that the claim herein relates to payment of gratuity/pension which cause of action is time barred. 33 The claimant respondent argues that the cause of action arose after the promise to pay her this money in 2025 and Page 13 of 14

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for which the respondents failed. As to whether there was a promise to pay or not are matters factual. It will also be dependent on facts to ascertain when the promise to pay or the payment became due. 34 These issues in my view fall beyond the purview of a preliminary objection as enunciated on the Mukisa Biscuit case (supra) which envisages that a preliminary objection should only be based on pure points of law. 35 It is therefore my finding that these issues can only be resolved after analyzing evidence to be adduced and cannot be resolved through this preliminary objection. The preliminary objection therefore fails and is dismissed. Costs in the cause. Dated, Signed and Delivered virtually at Nairobi this 8th Day of October 2026. HELLEN WASILWA JUDGE Page 14 of 14

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