United Aryan (EPZ) Ltd v Okongo & 4 others [2026] KEELRC 14944 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS

COURT OF KENYA AT NAIROBI

APPEAL NO. E210 OF 2025

UNITED ARYAN (EPZ) LTD.……………..……………..……APPELLANT

VERSUS

PAMELA. A. OKONGO……………..…….…................1ST RESPONDENT

LABAN OCHIENG……….…………………………….2ND RESPONDENT

ALICE MUSEE………………………….……………….3RD RESPONDENT

CAROLINE ACHIENG………………………..………..4TH RESPONDENT

PRISKA AUMA………………….………………………5TH RESPONDENT

(Being an appeal from the Ruling of Hon. Tom Mark Olando (PM) in Nairobi MELRC No. E1537 of 2023 dated on 10th June 2025)

JUDGMENT

1. By a Preliminary Objection dated 17th September 2024, the Appellant sought to strike out the suit before the Trial Court on the ground that it was statute barred under section 90 of the Employment Act. In a Ruling dated 10th June 2025, the Trial Court dismissed the Preliminary Objection, holding that claims for salary in lieu of notice and damages for wrongful termination did not constitute continuing injuries.

2. The Appellant was aggrieved and it lodged a Memorandum of Appeal dated 3rd July 2025 contending that the Trial Magistrate erred in fact and in law by:

(1) Failing to uphold the doctrine of stare decisis.

(2) Dismissing the Preliminary Objection.

(3) Finding that the Respondents submitted that the issues raised are continuing injuries.

(4) Finding that the suit is not statutorily time barred.

3. On the basis of these grounds, it urges the court to allow the appeal, set aside the Trial Court’s ruling, uphold the Preliminary Objection dated 17th September 2024 and dismiss the suit. The Appellant further seeks the costs of the appeal and of the proceedings before the trial court, together with any other orders that this Court may deem fit to grant.

4. The appeal was canvassed by way of written submissions. In a letter dated 11th June 2026, counsel for the Appellant informed the Court that, despite requesting certified copies of the proceedings, the same had not been supplied, rendering the record of appeal incomplete. Counsel nevertheless indicated that the Appellant had proceeded to file its submissions because the appeal turned principally on points of law that did not require the proceedings.

Appellant’s Submissions

5. As a preliminary point, the Appellant submits that section 90 of the Employment Act as referred to in the Preliminary Objection was amended to section 89 of the same Act but the substantive content was retained. For that reason, it asserts that the reference to section 90 is a mere technicality that does not affect the validity of the Preliminary Objection. It relies on Teachers Service Commission v Mutiso (Appeal E126 of 2025) [2026] KEELRC 618 (KLR), where it was held:

“First, the court states that the preliminary objection was based on section 90, which, vide amendments of the Employment Act in 2022 (Employment (Amendment) Act, 2022 (Act No. 15 of 2022) on 22 April 2022]), now reads section 89 of the Employment Act. The court will not delve into the issue of whether section 89 was pleaded, as submitted by the respondent, which issue the court opines is a mere technicality, as only the numbering of the law changed; the content of section 90 was retained in the amendment. Section 89 (formerly 90) reads as follows.”

6. The foregoing out of the way, the Appellant submits that the Trial Magistrate erroneously restricted himself to continuing injuries under section 89 of the Employment Act, yet the objection was with regard to the suit being filed 3 years after the cause of action arose. It draws attention to the fact that the cause of action arose on 27th June 2020 and the suit was filed on 21st August 2023. The Appellant asserts that nowhere in the Preliminary Objection were issues of continuing injuries raised. In light of the foregoing, it asserts that the Preliminary Objection is warranted as it is capable of disposing of the suit.

7. Furthermore, the Appellant submits that the Trial Magistrate erred in disregarding the doctrine of stare decisis `by ignoring binding decisions cited in its submissions, chief among them being Shitoshe v The Board of Management Shivanga Secondary School & another [2024] KEELRC 2222 (KLR), in which the court upheld a similar Preliminary Objection despite the fact that it referred to section 90 and not the revised section 89. Accordingly, the Appellant urges the Court to allow the appeal as prayed.

Respondents’ Submissions

8. The Respondents submit that the appeal is incompetent for failure to include in the record of appeal certified copies of the ruling, proceedings and the order appealed against, as required under Rules 14 and 15 of the Employment and Labour Relations Court (Procedure) Rules, 2024. They assert that these documents are mandatory hence their omission is fatal and deprives this court of jurisdiction to entertain the appeal. In support of this argument, the Respondent relies on Rajab Waswa Nabwaya v Western Steel Mills Limited & another [2026] KEELRC 1200 (KLR) where the Court held that the omission of a certified judgment and decree from the record of appeal rendered the appeal fatally defective because the use of the word "shall" in the Rules imposes a mandatory obligation. The Respondent also relies on Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR, where the Supreme Court held:

“Without a record of appeal, a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law. A Court cannot exercise its adjudicatory powers conferred by law, or the Constitution, where an appeal is incompetent. An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.”

9. Reliance is further placed on Paul Karenyi Leshuel v Ephantus Kariithi Mwangi & another [2015] eKLR, where the Court emphasized that the decree forms the foundation of an appeal and that its omission is not a mere procedural technicality but goes to the root of the appellate court's jurisdiction. Accordingly, they urge this Court to find that the appeal is incurably defective and to strike it out with cost. On the merits, the Respondent submits that the Trial Magistrate properly dismissed the preliminary objection because it sought to defeat the claim on technical grounds. The Respondents contend that the Preliminary Objection, which was founded on section 90 of the Employment Act, was correctly rejected after the Trial Court found that the claim related to a continuing injury and was therefore not statute-barred. The Respondents consequently urge this Court to dismiss the appeal with costs.

Disposition

10. The case presents an interesting challenge. The present appeal is stated to be against the Ruling and decree emanating from the decision of the Learned Magistrate on 10th June 2025. In the decision, the Learned Magistrate found the claim was not time barred in terms of section 89 of the Employment Act which limits claims to 3 years in the ordinary sense and to 12 months after cessation for a continuing injury. The Appeal is said to be incompetent for failure to include a record of appeal which includes the proceedings before the Learned Magistrate.

11. The Appeal before me is however on a Ruling. The pleadings are before the Court, the material upon which the decision was made including the submissions and the authorities cited are before the Court. In my considered view, there is sufficient material to determine the soundness or otherwise of the Ruling of the Learned Magistrate.

12. The limitation of actions is fundamental to a claim under the Employment Act. Where the claim relates to continuing harm, there must be a suit filed within 12 months of the cessation thereof or next following the injury complained of. For ordinary claims such as termination, the time is set at 3 years and there is no room for extension on either score. This means the claims by the Respondents which were articulated in the memorandum of claim were due for filing on or before 27th June 2023 for termination and 26th June 2021 for continuing injury. The claims were however presented in September 2023 which was 3 months past the time any claim could be presented.

13. The determination by the Learned Magistrate was therefore erroneous and is accordingly vacated and substituted with an order striking out the suit for being time barred. It is struck out with no order as to costs.

It is so ordered.

Dated and delivered at Kisumu this 3rd day of November 2026

Nzioki wa Makau, MCIArb.

JUDGE