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Preliminary Objection

The Claimant, Harrison Kayeri Kibidi, filed a Memorandum of Claim against the Teachers Service Commission, which the Respondent contends is time-barred under the Employment Act and the Public Authorities Limitation Act. The Claimant argues that the suit is valid as it was filed within the statutory three-year limitation period following his retirement on January 1, 2023. The Claimant requests the court to dismiss the Respondent's Preliminary Objection as lacking merit and to affirm the court's jurisdiction to hear the case.

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54 views5 pages

Preliminary Objection

The Claimant, Harrison Kayeri Kibidi, filed a Memorandum of Claim against the Teachers Service Commission, which the Respondent contends is time-barred under the Employment Act and the Public Authorities Limitation Act. The Claimant argues that the suit is valid as it was filed within the statutory three-year limitation period following his retirement on January 1, 2023. The Claimant requests the court to dismiss the Respondent's Preliminary Objection as lacking merit and to affirm the court's jurisdiction to hear the case.

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We take content rights seriously. If you suspect this is your content, claim it here.
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REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI


ELRC CAUSE NO. E386 OF 2024

HARRISON KAYERI KIBIDI……………………………………………………………………CLAIMANT


-VERSUS-
TEACHERS SERVICE COMMISSION……………………………...……………………..RESPONDENT

CLAIMANT’S SUBMISSIONS IN RESPONSE TO THE RESPONDENT’S PRELIMINARY


OBJECTION DATED 17TH JULY, 2024

May it please this Honourable Court,

A. FACTUAL BACKGROUND
1. On 21st May 2024, the Claimant herein filed a Memorandum of Claim
accompanied by a verifying affidavit, both dated 20th May 2024. Additionally, he
submitted his witness statement, the list of witnesses, and a bundle of
documents on the same date.
2. The Respondent entered an appearance on 14th June 2024, and on 17th July
2024, filed a Notice of Preliminary Objection dated 17th July 2024.
3. The instant Notice of Preliminary Objection is premised on the grounds that the
claim herein being premised on a cause of action arising on 1/7/2017 and
2/1/2020 is time-barred and offends the mandatory provisions of section 90 of
the Employment Act, 2007, and Section 3(2) of the Public Authorities Limitation
Act thus the Honourable Court has no jurisdiction to hear and determine the
claim.
4. The Court on 25th September 2024 directed that the Notice of Preliminary
Objection be canvassed first by way of written submissions.

B. ISSUES FOR DETERMINATION


5. The issues which arises are whether the Preliminary Objection was proper and
whether the suit is time-barred.

C. ANALYSIS
a) Whether the preliminary objection was proper
6. Your Lordship, it is trite law that a Preliminary Objection must consist of pure
points of law and cannot be raised if facts are in dispute or need to be
ascertained. This was well stated in the case of Mukisa Biscuits Manufacturing
Co. Ltd v West End Distributors Ltd [1969] EA 696, where their Lordships
observed as follows:
“----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 a contract giving rise to the suit to
refer the dispute to arbitration”.
Furthermore, Sir Charles Newbold, P. in the same case clarified:

“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. It cannot be raised if any fact
has to be ascertained or if what is sought is the exercise of judicial
discretion. The improper raising of preliminary objections does nothing but
unnecessarily increase costs and on occasion, confuse the issue, and this
improper practice should stop”.

7. In addition, the court in David Karobia Kiiru v Charles Nderitu Gitoi &
another [2018] eKLR, per Justice D.O. Ohungo, further reiterated the essential
elements of a valid preliminary objection, stating:

[12]” For a preliminary objection to succeed the following tests ought to be


satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on
the assumption that all the facts pleaded by the other side are correct; and
finally, it cannot be raised if any fact has to be ascertained or if what is
sought is the exercise of judicial discretion.”

8. In the present case, the Respondent disputes the date on which the cause of
action arose, alleging that it stems from events occurring on 1st July 2017 and
2nd January 2020. The Preliminary Objection thus introduces a factual dispute
which requires facts and documentary evidence to substantiate and it is
therefore an abuse of the court process.
9. It is our humble submission that the Preliminary Objection does not raise pure
points of law as per the holding in Mukisa Biscuits Manufacturing Co. Ltd v
West End Distributors Ltd [1969] EA 696. Accordingly, the Respondent’s
Preliminary Objection is without merit and therefore not proper.

b) Whether this suit is time-barred and offends the provisions of


Sections 90 of the Employment Act, 2007 and Section 3(2) of
the Public Authorities Act
10. Your Lordship, one of the recognized grounds for raising a Preliminary Objection
is lack of jurisdiction. The leading case on the issue of jurisdiction is The Owners
of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd* [1989] KLR 1, where the
Court held:
“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 Court of Law downs
tools in respect of the matter before it the moment it holds the opinion that
it is without jurisdiction.”
11.In the present case, the Respondent asserts that this Honourable Court lacks
jurisdiction to hear and determine the matter by virtue of Section 90 of the
Employment Act, contending that the claim was filed outside the statutory
limitation period of 3 years from the date the cause of action arose. The
Respondent further argues that the claim is time-barred under Section 3(2) of
the Public Authorities Limitation Act.
12. Section 90 of the Employment Act is explicit in its limitation provisions. It
provides:
“90. Notwithstanding the provisions of section 4 (1) of the
Limitation of Actions Act, 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.”
13. Additionally, Section 3(2) of the Public Authorities Limitation Act provides:
“No proceedings founded on contract shall be brought against the
Government or a local authority after the end of three years from the
date on which the cause of action accrued.”
14. Your Lordship, on the issue of when a cause of action arises, the court in Michira
& 41 others v Aegis Kenya Ltd t/a Leopard Beach Hotel* (Cause E088 of
2023) [2023] KEELRC 2551 (KLR) (Ruling) stated:
[13] “The cause of action arises with end of employment. The last day the
employee exits the shop floor, any accruing dues must to addressed within 3
years….,”
15. In the present case, the Claimant’s employment with the Respondent terminated
upon his retirement on 1st January 2023. He subsequently filed his
memorandum of claim on 20th May 2024, which is well within the statutory 3-
year limitation period provided under sections of the afore-mentioned Acts. It
follows therefore that the Respondent's contention this suit is time-barred lacks
merit and should be dismissed with cost.
D. CONCLUSION
16. Your Lordship, in light of the foregoing, it is evident that the suit has been
properly filed within the statutory timelines prescribed under Section 90 of the
Employment Act and Section 3(2) of the Public Authorities Limitation Act, as the
Claimant’s cause of action arose upon his retirement on 1st January 2023, and
the claim was filed on 20th May 2024, well within the 3-year limitation period.
17. Consequently, this Honourable Court has the requisite jurisdiction to hear and
determine this matter, and the Respondent’s assertion to the contrary is without
basis.
18. It is therefore our humble submission that the Preliminary Objection raised by
the Respondent lacks merit and should be struck out with costs to the Claimant.

DATED at NAIROBI this……………………... day of ……………………………….2024


C.O WASONGA & COMPANY ADVOCATES
ADVOCATES FOR THE CLAIMANT

DRAWN AND FILED BY:


C.O WASONGA & COMPANY ADVOCATES
UNIAFRIC HOUSE 2ND FLOOR SUITE 220
KOINANGE STREET
P.O BOX 223-00100
NAIROBI
Email: [email protected]

TO BE SERVED UPON:
PATRICK MULAKU, ADVOCATE
TSC HOUSE, UPPER HILL,
KILIMANJARO ROAD, OFF MARA ROAD,
PRIVATE BAG 00100,
NAIROBI
Email: [email protected] , [email protected]

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