1. The petition is by 132 former and retired employees of the defunct County Council of Garissa and the Municipal Council of Garissa, respectively. The petitioners alleged to be victims of transition to the County Government and filed a petition amended on the 9th June 2025 against the county government of Garissa and seeking for the following relief-
i) A Declaration that the continued non-payment of their dues accruing from the defunct local authorities amounts to a contravention of the Petitioners' labour rights under Articles; 19, 20, 21 and 41 of the Constitution of Kenya, 2010.
ii) A Declaration that the Petitioners have suffered and continue to suffer due to discrimination and breach to their right to protection and equality on the part of the First Respondent, under Article 27 91) of the Constitution.
iii) An Order be issued for adequate compensation to the Petitioners due to the violation of their fair remuneration rights pecuniary losses and emotional stress and suffering.
iv) A Declaration that the Petitioners' Claim for the unpaid arrears is valid.
v) A Declaration that Petitioners are entitled to the Principal sum amounting to Ksh.38,469,156/= claimed together with the claim for lost years for 21 years amounting to Ksh.38,469,156/= all Totalling to Ksh. 76,938,312/= (schedule above).
vi) Costs of this Petition.
vii) Any Other or further orders, writs, directions that the Honourable Court considers appropriate and just to grant for purposes of enforcing the Petitioner's Fundamental rights and freedoms
2. The petition was grounded on the following assertions- At all material times to the institution of this Petition the Petitioners were former staff of the Defunct County Council of Garissa and Municipal Council of Garissa respectively who are retirees of the two former Local Authorities which became defunct after the New Constitution of Kenya, 2010. That the Petitioners are victims of the transition from the former Local Authorities to the new County Government. The Petitioners do aver that their rights as enshrined in Article 1 of the Constitution have been violated by the First Respondent who has neglected to their dues despite resources being provided by the National Government. The Petitioners wish to Petition the Honourable Court that other Counties in the Republic of Kenya have settled all payments due to the former staff of the former Local Government authorities. The First Respondent has contravened and continues to contravene the constitutional rights of the Petitioners enumerated herein. The First Respondent is also acting in breach of the International Conventions and the United Nations Universal Rights which the Republic of Kenya has subscribed to pursuant to Article 2 of the Constitution. The Petitioners do aver that notwithstanding the approvals given for the payment of the arrears due to the Petitioners, the First Respondent has neglected to settle the said arrears with effect from 1994 to February, 2013. The Petitioners have suffered emotional loss, pain and psychological trauma when they recall that their fellow workmates from other counties have been fully paid their outstanding dues. The Petitioners who were in the payroll of the defunct County and Municipal Council could have rendered services till their retirement. The Petitioners are entitled to compensation for the lost years they could have rendered services, at the average of 21 years together with the statutory dues.
3. The 1st respondent in response to the petition raised a notice of preliminary objection date 29th December 2025 as follows-
a. Limitation of time - The Petitioners' claims are statute-barred and this Honourable Court lacks jurisdiction to entertain the same by virtue of Section 90 of the Employment Act, 2007. Section 90 of the Employment Act provides: "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." The Petitioners aver at paragraph 10 of the Petition that they are seeking payment of arrears "with effect from 1994 to February 2013." This Petition was filed in 2025, more than twelve (12) years after the alleged cause of action arose in February 2013, and more than thirty-one (31) years after the earliest claim dating back to 1994. The limitation period of three (3) years prescribed by Section 90 of the Employment Act is mandatory and cannot be extended under any circumstances. In Beatrice Kahai Adagala v. Postal Corporation of Kenya [2015] eKLR, the Court of Appeal at para 14 held: "The limitation period (of three years) fixed by section 90 of the Act is couched in mandatory terms. Unlike the limitation period fixed by the Limitation of Actions Act for torts, under no circumstances can the limitation period fixed by section 90 of the Act be extended." The Petitioners cannot escape the operation of Section 90 by characterizing their claims as constitutional petitions. The underlying cause of action arises from contracts of employment and alleged unpaid terminal dues, which are governed by the Employment Act. In G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] KECA 827 (KLR), the Court of Appeal, at para 20, held that claims for unpaid terminal dues do not constitute a continuing injury and time starts to run from the date of termination of employment: "[20] In the circumstances of this case we find that such 'unpaid terminal dues' do not constitute a continuing injury as contemplated under the proviso to Section 90 of the Employment Act. The Respondents assert claims arising from the termination of their employment and dues that accrued to each of them at the end of each month." The Petitioners' employment with the defunct local authorities ended no later than February 2013 when the local authorities ceased to exist. The three-year limitation period expired in February 2016. This Petition, filed in 2025, is hopelessly time-barred. The Court lacks jurisdiction to entertain claims filed outside the statutory limitation period. In Samuel Kamau Macharia v. Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, the Supreme Court held: " A court's jurisdiction is derived from the constitution or statute or both." Jurisdiction can be lost by operation of law under statutory limitation provisions. WHEREFORE, the 1st Respondent prays that this Preliminary Objection be upheld and the Petition be struck out with costs for being filed outside the statutory limitation period.
b. Failure to exhaust mandatory statutory procedures - The Petitioners have failed to exhaust the mandatory statutory procedures for verification and validation of liabilities of defunct local authorities as required by law. The transition from defunct local authorities to county governments was governed by: The Sixth Schedule to the Constitution of Kenya, 2010; The Transition to Devolved Government Act, 2012; The County Governments Act, 2012; The Intergovernmental Relations Act, 2012; The Kenya Gazette Notice No. 7531 of 2016 establishing institutional structures for verification and transfer of assets and liabilities. Section 15 of the Sixth Schedule to the Constitution provides: "Parliament shall, by legislation, provide for the phased transfer, over a period of not more than three years from the date of the first election of county assemblies, from the national government to county governments of the functions assigned to them under Article 186." The Transition to Devolved Government Act, 2012 established the Transition Authority whose functions under Section 7 included: To prepare and validate an inventory of all existing assets and liabilities of government, other public entities and local authorities; To develop criteria to determine the transfer of previously shared assets, liabilities and staff. 24. Section 35 of the Transition to Devolved Government Act provides: "All liabilities of the defunct local authorities shall be verified and validated by the Intergovernmental Relations Technical Committee." Kenya Gazette Notice No. 7531 of 2016 established County Assets and Liabilities Committees to: Identify, verify and validate all assets and liabilities of defunct local authorities; Prepare comprehensive registers of assets and liabilities as of 27th March 2013; Submit reports to the Intergovernmental Relations Technical Committee. In Petition No. 2 of 2014 - County Government of Busia & Others v. Attorney General & Others [2015] eKLR, Justice Tuiyot cited with approval the case of Republic vs County Secretary Murang’a County Government ex-parte Thiga Thuita [2014] eKLR where Justice Ngaah: "As at the time this application was argued, there was no evidence and none was brought to the attention of the court that such criteria is now in place as contemplated under the Transition to Devolved Government Act. Without this criteria, it would be premature to attribute the local authorities' pre-existing liabilities to the County Governments." In Civil Appeal No. 14 of 2015 - County Government of Kakamega v. Chege [2017] eKLR, the Court of Appeal held: "The decree of Kshs. 3,000,000/= against the Municipal Council of Kakamega that was issued in August, 2012 formed part of the liabilities of that Local Authority and was subject to audit by the Transition Authority. The learned trial judge erred in finding that 'the so called audit is a mere excuse'. The audit was a statutory requirement." The Court further held: "Section 134 (2) of the County Government Act provides that all issues that arose as a consequence of that repeal of the said Act were to be dealt with and discharged 'by the body responsible for matters relating to transition.' In my view, that body is the Transition Authority." The Petitioners have not demonstrated that their claims have been: Submitted to the County Assets and Liabilities Committee for verification; Validated by the Intergovernmental Relations Technical Committee; Included in the comprehensive register of liabilities of the defunct local authorities; Approved for payment in accordance with the statutory framework. The failure to follow these mandatory statutory procedures renders the Petition premature. In Kenya County Government Workers Union v. Kisumu County Public Service Board & Kisumu County Government (Civil Appeal 87 of 2016) [2019] KECA 587 (KLR), the Court of Appeal noted: "While the County Government after the promulgation of the Constitution of Kenya, 2010 inherited the assets and liabilities of the defunct local authorities within its boundaries... the Transition Authority in its guidelines made it clear that workers of the defunct local authority are part of the human resource and... according to the Transition Authority Audit carried out in 2013." Without verification and validation through the proper statutory channels, the 1st Respondent cannot be compelled to pay unverified claims that may or may not constitute genuine liabilities of the defunct local authorities. WHEREFORE, the 1st Respondent prays that this Preliminary Objection be upheld and the Petition be dismissed for failure to exhaust mandatory statutory procedures.
c. Lack of proper documentation and verification - The Petitioners have failed to produce any credible documentation to support their claims. The Petitioners have not produced: o Employment contracts or letters of appointment from the defunct local authorities; Payslips or salary records showing underpayment or non-payment; o Letters of termination or retirement; Computation of terminal benefits by the defunct local authorities; Acknowledgment of debt by the defunct local authorities; Any correspondence with the defunct local authorities regarding their claims. The schedule of arrears attached to the Petition contains only names and figures without any supporting documentation or explanation of how these figures were arrived at. Section 11 of the Employment Act requires that particulars of an employee's contract of employment be given in writing. Without such documentation, the Petitioners cannot establish the existence of employment relationships or the terms thereof. The burden of proof lies on the Petitioners to establish their claims on a balance of probabilities. In the absence of any documentation, the Petitioners have failed to discharge this burden. WHEREFORE, the 1st Respondent prays that this Preliminary Objection be upheld and the Petition be struck out for lack of proper documentation and verification.
4. The 2nd respondent entered an appearance and filed a Notice of Preliminary Objection dated 20th May 2025 to effect that it had been misjoined in the proceedings, and no cause of action was disclosed against the Attorney General.
Decision
5. The Notice of Preliminary Objection by the 1st respondent was unopposed. The objection by the 1st respondent raised a point of law that the cause of action was timebarred under section 90(now 89) of the Employment Act. Section 89 states- ‘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.’ I upheld authority relied on by the 1st respondent of the Court of Appeal in Beatrice Kahai Adagala v. Postal Corporation of Kenya [2015] eKLR, at para 14 held: "The limitation period (of three years) fixed by section 90 of the Act is couched in mandatory terms. Unlike the limitation period fixed by the Limitation of Actions Act for torts, under no circumstances can the limitation period fixed by section 90 of the Act be extended."
6. The court, on perusal of the petition and the relief sought, found it was a pure claim of terminal benefits founded on terminated contracts and no prayer for constitutional violation. In Wajir Wasco Limited, alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR), the Court of Appeal held as follows:-‘ There is no dispute that the germane dispute is the stoppage of salaries. This is an employer/employee dispute. We are alive to the fact that every case has a constitutional underpinning, be it a criminal case, civil or commercial. However, it is important to point out that not every dispute ought to be brought as constitutional question. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute. The germane issue in this can case be resolved by interpreting the facts, the contract documents, (written or oral) and the relevant statutes.’ The instant cause of action of terminal benefits is a claim falling under the Employment Act, which unfortunately limits the time for filing such claims to 3 years and 12 months for continuing injury under section 89(supra). The claims were stale. The time cannot be extended for contractual claims. This was a case of constitutional avoidance as pronounced in S vs. Mhlungu 1995 (3) SA 867 (CC) 59 where the court laid out constitutional avoidance as a general principle in the following terms: “I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”(cited in by the court of appeal in above case)
7. The threshold of a proper Notice of Preliminary Objection was settled in Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 the Court stated as follows:- ‘"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 issue of time limitations can be ascertained from the facts. Time limitations negate the court's jurisdiction. It is a proper point of law for a preliminary objection.
8. The Notice of Preliminary Objection dated 29th December 2025 is allowed. The petition is dismissed because the claims are time-barred, thus the court lacks jurisdiction. The petition is held to have been a case of constitutional avoidance as no constitutional violations were pleaded with precision and there were no prayers for constitutional violation. These were claims for terminal dues which are held as time-barred under section 89 of the Employment Act. The claims are all founded on contracts.
9. On the notice of Preliminary objection by the 2nd respondent, I need not delve on the same having dismissed the petition.
10. Taking into account the nature of the claims, the status of the parties and their relationships, I order each party to bear its own costs in the preliminary objections and the petition.
11. The file is marked as closed.
12. It is so Ordered.
DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2026.
i) A Declaration that the continued non-payment of their dues accruing from the defunct local authorities amounts to a contravention of the Petitioners' labour rights under Articles; 19, 20, 21 and 41 of the Constitution of Kenya, 2010.
ii) A Declaration that the Petitioners have suffered and continue to suffer due to discrimination and breach to their right to protection and equality on the part of the First Respondent, under Article 27 91) of the Constitution.
iii) An Order be issued for adequate compensation to the Petitioners due to the violation of their fair remuneration rights pecuniary losses and emotional stress and suffering.
iv) A Declaration that the Petitioners' Claim for the unpaid arrears is valid.
v) A Declaration that Petitioners are entitled to the Principal sum amounting to Ksh.38,469,156/= claimed together with the claim for lost years for 21 years amounting to Ksh.38,469,156/= all Totalling to Ksh. 76,938,312/= (schedule above).
vi) Costs of this Petition.
vii) Any Other or further orders, writs, directions that the Honourable Court considers appropriate and just to grant for purposes of enforcing the Petitioner's Fundamental rights and freedoms
2. The petition was grounded on the following assertions- At all material times to the institution of this Petition the Petitioners were former staff of the Defunct County Council of Garissa and Municipal Council of Garissa respectively who are retirees of the two former Local Authorities which became defunct after the New Constitution of Kenya, 2010. That the Petitioners are victims of the transition from the former Local Authorities to the new County Government. The Petitioners do aver that their rights as enshrined in Article 1 of the Constitution have been violated by the First Respondent who has neglected to their dues despite resources being provided by the National Government. The Petitioners wish to Petition the Honourable Court that other Counties in the Republic of Kenya have settled all payments due to the former staff of the former Local Government authorities. The First Respondent has contravened and continues to contravene the constitutional rights of the Petitioners enumerated herein. The First Respondent is also acting in breach of the International Conventions and the United Nations Universal Rights which the Republic of Kenya has subscribed to pursuant to Article 2 of the Constitution. The Petitioners do aver that notwithstanding the approvals given for the payment of the arrears due to the Petitioners, the First Respondent has neglected to settle the said arrears with effect from 1994 to February, 2013. The Petitioners have suffered emotional loss, pain and psychological trauma when they recall that their fellow workmates from other counties have been fully paid their outstanding dues. The Petitioners who were in the payroll of the defunct County and Municipal Council could have rendered services till their retirement. The Petitioners are entitled to compensation for the lost years they could have rendered services, at the average of 21 years together with the statutory dues.
3. The 1st respondent in response to the petition raised a notice of preliminary objection date 29th December 2025 as follows-
a. Limitation of time - The Petitioners' claims are statute-barred and this Honourable Court lacks jurisdiction to entertain the same by virtue of Section 90 of the Employment Act, 2007. Section 90 of the Employment Act provides: "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." The Petitioners aver at paragraph 10 of the Petition that they are seeking payment of arrears "with effect from 1994 to February 2013." This Petition was filed in 2025, more than twelve (12) years after the alleged cause of action arose in February 2013, and more than thirty-one (31) years after the earliest claim dating back to 1994. The limitation period of three (3) years prescribed by Section 90 of the Employment Act is mandatory and cannot be extended under any circumstances. In Beatrice Kahai Adagala v. Postal Corporation of Kenya [2015] eKLR, the Court of Appeal at para 14 held: "The limitation period (of three years) fixed by section 90 of the Act is couched in mandatory terms. Unlike the limitation period fixed by the Limitation of Actions Act for torts, under no circumstances can the limitation period fixed by section 90 of the Act be extended." The Petitioners cannot escape the operation of Section 90 by characterizing their claims as constitutional petitions. The underlying cause of action arises from contracts of employment and alleged unpaid terminal dues, which are governed by the Employment Act. In G4S Security Services (K) Limited v Joseph Kamau & 468 others [2018] KECA 827 (KLR), the Court of Appeal, at para 20, held that claims for unpaid terminal dues do not constitute a continuing injury and time starts to run from the date of termination of employment: "[20] In the circumstances of this case we find that such 'unpaid terminal dues' do not constitute a continuing injury as contemplated under the proviso to Section 90 of the Employment Act. The Respondents assert claims arising from the termination of their employment and dues that accrued to each of them at the end of each month." The Petitioners' employment with the defunct local authorities ended no later than February 2013 when the local authorities ceased to exist. The three-year limitation period expired in February 2016. This Petition, filed in 2025, is hopelessly time-barred. The Court lacks jurisdiction to entertain claims filed outside the statutory limitation period. In Samuel Kamau Macharia v. Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, the Supreme Court held: " A court's jurisdiction is derived from the constitution or statute or both." Jurisdiction can be lost by operation of law under statutory limitation provisions. WHEREFORE, the 1st Respondent prays that this Preliminary Objection be upheld and the Petition be struck out with costs for being filed outside the statutory limitation period.
b. Failure to exhaust mandatory statutory procedures - The Petitioners have failed to exhaust the mandatory statutory procedures for verification and validation of liabilities of defunct local authorities as required by law. The transition from defunct local authorities to county governments was governed by: The Sixth Schedule to the Constitution of Kenya, 2010; The Transition to Devolved Government Act, 2012; The County Governments Act, 2012; The Intergovernmental Relations Act, 2012; The Kenya Gazette Notice No. 7531 of 2016 establishing institutional structures for verification and transfer of assets and liabilities. Section 15 of the Sixth Schedule to the Constitution provides: "Parliament shall, by legislation, provide for the phased transfer, over a period of not more than three years from the date of the first election of county assemblies, from the national government to county governments of the functions assigned to them under Article 186." The Transition to Devolved Government Act, 2012 established the Transition Authority whose functions under Section 7 included: To prepare and validate an inventory of all existing assets and liabilities of government, other public entities and local authorities; To develop criteria to determine the transfer of previously shared assets, liabilities and staff. 24. Section 35 of the Transition to Devolved Government Act provides: "All liabilities of the defunct local authorities shall be verified and validated by the Intergovernmental Relations Technical Committee." Kenya Gazette Notice No. 7531 of 2016 established County Assets and Liabilities Committees to: Identify, verify and validate all assets and liabilities of defunct local authorities; Prepare comprehensive registers of assets and liabilities as of 27th March 2013; Submit reports to the Intergovernmental Relations Technical Committee. In Petition No. 2 of 2014 - County Government of Busia & Others v. Attorney General & Others [2015] eKLR, Justice Tuiyot cited with approval the case of Republic vs County Secretary Murang’a County Government ex-parte Thiga Thuita [2014] eKLR where Justice Ngaah: "As at the time this application was argued, there was no evidence and none was brought to the attention of the court that such criteria is now in place as contemplated under the Transition to Devolved Government Act. Without this criteria, it would be premature to attribute the local authorities' pre-existing liabilities to the County Governments." In Civil Appeal No. 14 of 2015 - County Government of Kakamega v. Chege [2017] eKLR, the Court of Appeal held: "The decree of Kshs. 3,000,000/= against the Municipal Council of Kakamega that was issued in August, 2012 formed part of the liabilities of that Local Authority and was subject to audit by the Transition Authority. The learned trial judge erred in finding that 'the so called audit is a mere excuse'. The audit was a statutory requirement." The Court further held: "Section 134 (2) of the County Government Act provides that all issues that arose as a consequence of that repeal of the said Act were to be dealt with and discharged 'by the body responsible for matters relating to transition.' In my view, that body is the Transition Authority." The Petitioners have not demonstrated that their claims have been: Submitted to the County Assets and Liabilities Committee for verification; Validated by the Intergovernmental Relations Technical Committee; Included in the comprehensive register of liabilities of the defunct local authorities; Approved for payment in accordance with the statutory framework. The failure to follow these mandatory statutory procedures renders the Petition premature. In Kenya County Government Workers Union v. Kisumu County Public Service Board & Kisumu County Government (Civil Appeal 87 of 2016) [2019] KECA 587 (KLR), the Court of Appeal noted: "While the County Government after the promulgation of the Constitution of Kenya, 2010 inherited the assets and liabilities of the defunct local authorities within its boundaries... the Transition Authority in its guidelines made it clear that workers of the defunct local authority are part of the human resource and... according to the Transition Authority Audit carried out in 2013." Without verification and validation through the proper statutory channels, the 1st Respondent cannot be compelled to pay unverified claims that may or may not constitute genuine liabilities of the defunct local authorities. WHEREFORE, the 1st Respondent prays that this Preliminary Objection be upheld and the Petition be dismissed for failure to exhaust mandatory statutory procedures.
c. Lack of proper documentation and verification - The Petitioners have failed to produce any credible documentation to support their claims. The Petitioners have not produced: o Employment contracts or letters of appointment from the defunct local authorities; Payslips or salary records showing underpayment or non-payment; o Letters of termination or retirement; Computation of terminal benefits by the defunct local authorities; Acknowledgment of debt by the defunct local authorities; Any correspondence with the defunct local authorities regarding their claims. The schedule of arrears attached to the Petition contains only names and figures without any supporting documentation or explanation of how these figures were arrived at. Section 11 of the Employment Act requires that particulars of an employee's contract of employment be given in writing. Without such documentation, the Petitioners cannot establish the existence of employment relationships or the terms thereof. The burden of proof lies on the Petitioners to establish their claims on a balance of probabilities. In the absence of any documentation, the Petitioners have failed to discharge this burden. WHEREFORE, the 1st Respondent prays that this Preliminary Objection be upheld and the Petition be struck out for lack of proper documentation and verification.
4. The 2nd respondent entered an appearance and filed a Notice of Preliminary Objection dated 20th May 2025 to effect that it had been misjoined in the proceedings, and no cause of action was disclosed against the Attorney General.
Decision
5. The Notice of Preliminary Objection by the 1st respondent was unopposed. The objection by the 1st respondent raised a point of law that the cause of action was timebarred under section 90(now 89) of the Employment Act. Section 89 states- ‘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.’ I upheld authority relied on by the 1st respondent of the Court of Appeal in Beatrice Kahai Adagala v. Postal Corporation of Kenya [2015] eKLR, at para 14 held: "The limitation period (of three years) fixed by section 90 of the Act is couched in mandatory terms. Unlike the limitation period fixed by the Limitation of Actions Act for torts, under no circumstances can the limitation period fixed by section 90 of the Act be extended."
6. The court, on perusal of the petition and the relief sought, found it was a pure claim of terminal benefits founded on terminated contracts and no prayer for constitutional violation. In Wajir Wasco Limited, alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR), the Court of Appeal held as follows:-‘ There is no dispute that the germane dispute is the stoppage of salaries. This is an employer/employee dispute. We are alive to the fact that every case has a constitutional underpinning, be it a criminal case, civil or commercial. However, it is important to point out that not every dispute ought to be brought as constitutional question. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute. The germane issue in this can case be resolved by interpreting the facts, the contract documents, (written or oral) and the relevant statutes.’ The instant cause of action of terminal benefits is a claim falling under the Employment Act, which unfortunately limits the time for filing such claims to 3 years and 12 months for continuing injury under section 89(supra). The claims were stale. The time cannot be extended for contractual claims. This was a case of constitutional avoidance as pronounced in S vs. Mhlungu 1995 (3) SA 867 (CC) 59 where the court laid out constitutional avoidance as a general principle in the following terms: “I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”(cited in by the court of appeal in above case)
7. The threshold of a proper Notice of Preliminary Objection was settled in Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 the Court stated as follows:- ‘"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 issue of time limitations can be ascertained from the facts. Time limitations negate the court's jurisdiction. It is a proper point of law for a preliminary objection.
8. The Notice of Preliminary Objection dated 29th December 2025 is allowed. The petition is dismissed because the claims are time-barred, thus the court lacks jurisdiction. The petition is held to have been a case of constitutional avoidance as no constitutional violations were pleaded with precision and there were no prayers for constitutional violation. These were claims for terminal dues which are held as time-barred under section 89 of the Employment Act. The claims are all founded on contracts.
9. On the notice of Preliminary objection by the 2nd respondent, I need not delve on the same having dismissed the petition.
10. Taking into account the nature of the claims, the status of the parties and their relationships, I order each party to bear its own costs in the preliminary objections and the petition.
11. The file is marked as closed.
12. It is so Ordered.
DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2026.