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Court of AppealPartially AllowedCivil Appeal No. 21 of 2015

Attorney General & another v Githinji & another (Civil Appeal 21 of 2015) [2016] KECA 817 (KLR)

Court of Appeal of Kenya
3 February 2016
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
7,070 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a wrongfully dismissed employee has three years from dismissal to sue, even if criminal charges are still pending.

What this practically means

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Executive summary

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This was a first appeal from a ruling of Byram Ongaya J of the Employment and Labour Relations Court at Nyeri dismissing the Attorney General's amended preliminary objection that the respondents' claim for reinstatement and general damages for wrongful dismissal was time-barred under section 90 of the Employment Act. The trial court had held that the cause of action accrued only upon the respondents' acquittal in criminal charges arising from their employment, making the suit timely. In a 2-1 decision, the Court of Appeal allowed the appeal. Waki JA, in the lead judgment with which Kiage JA fully agreed, held that a preliminary objection on limitation is a pure point of law under Mukisa Biscuit, that the cause of action for unfair or wrongful termination accrues on the date of dismissal, and that the suit filed more than four years after the dismissal of 2nd February 2013 expiry was time-barred. The court distinguished Mbowa v East Mengo Administration as a malicious prosecution case and held that an employer's internal disciplinary process is independent of criminal proceedings on the same facts, acquittal not binding the employer. Nambuye JA dissented, finding that disputed facts prevented the objection from meeting the Mukisa Biscuit threshold, but deferred to the majority. The Court set aside the ruling of 6th March 2015, allowed the preliminary objection, struck out the respondents' claim in its entirety, and awarded the appellants costs of both the appeal and the struck-out claim.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the preliminary objection raised by the Attorney General was proper in form as a pure point of law
  2. 2.Whether the preliminary objection was sound in substance, i.e. whether the respondents' suit was time-barred under section 90 of the Employment Act
  3. 3.At what point a cause of action accrues in a claim of unlawful/wrongful termination of employment
  4. 4.Whether an employer is bound by the outcome of a criminal process in exercising its internal disciplinary process where both share a common factual base
  5. 5.Whether the learned Judge was justified in applying the self-formulated principles in Mathew Kipchumba Koskei v Baringo Teachers Sacco
  6. 6.Whether the trial Judge exercised his discretion judiciously in rejecting the appellants' amended preliminary objection

Key legal issues

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01

When does a cause of action accrue in a claim for unfair/wrongful termination?

Holding

It accrues on the date of dismissal, when the employee receives the letter of dismissal, not upon acquittal in related criminal proceedings.

Reasoning

The court adopted the definitions of a cause of action by Lord Esher and Lord Diplock. On the respondents' own pleadings, services were terminated on 2nd February 2010 and parties are bound by their pleadings. The claim was brought under the Employment Act, not for malicious prosecution, so acquittal was not a necessary element. The employee had all relevant facts from the disciplinary proceedings at dismissal and could have filed suit then.

p. 10
02

Whether the suit was time-barred under section 90 of the Employment Act

Holding

Yes. The three-year limitation period expired on or about 1st February 2013; the suit filed on 13th June 2014 was time-barred.

Reasoning

Section 90 of the Employment Act mandatorily limits civil actions arising out of the Act or a contract of service to three years from the act complained of, and does not yield to section 4 of the Limitation of Actions Act. Parliament's intention was to protect employer and employee from stale claims. The claim was filed four years and ten months after dismissal.

p. 10
03

Whether an employer's internal disciplinary process is bound by the outcome of criminal proceedings on the same facts

Holding

No. The two processes are independent; acquittal does not bind the employer and does not postpone accrual of the cause of action.

Reasoning

The court relied on ELRC authority (Igati, Wachira Ndethi, Owino) and the Court of Appeal in Geoffrey Kiragu Njogu and JSC v Shollei holding that disciplinary processes are anchored on the contract of employment, require proof on a balance of probability, and are not subject to criminal investigation or trial outcomes. R v Wigglesworth establishes that a single act may give rise to multiple legal consequences.

p. 8
04

Whether the trial Judge exercised his discretion judiciously in rejecting the preliminary objection

Holding

No. The majority held the objection was a pure point of law properly taken and ought to have been upheld.

Reasoning

Applying Mukisa Biscuit, a plea of limitation is a pure point of law; the relevant facts (dates of dismissal and filing) were not in dispute and no judicial discretion was involved. The trial Judge's reliance on Mbowa and the Koskei principles was misplaced, as those cases concerned malicious prosecution or post-dated principles inapplicable to the facts.

p. 6

Legal principles established

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  • In a claim for unfair or wrongful termination under the Employment Act, the cause of action accrues on the date of dismissal, not upon the outcome of any related criminal proceedings.
  • A dismissal is lawful or unlawful, and therefore actionable or not, on the date it is effected; a dismissed employee need not await the outcome of concurrent criminal proceedings.
  • Section 90 of the Employment Act imposes a mandatory three-year limitation period for actions arising out of the Act or a contract of service, excluding the operation of section 4 of the Limitation of Actions Act.
  • An internal disciplinary process is distinct from criminal proceedings arising from the same facts, and an acquittal or conviction in the criminal process does not bind the employer in the disciplinary process.
  • The Mbowa v East Mengo Administration principle on accrual of cause of action applies to malicious prosecution, where acquittal is an element of the cause of action, and is distinguishable in unfair/wrongful dismissal claims.
  • A preliminary objection must be a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if the exercise of judicial discretion is sought.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling and order of the Employment and Labour Relations Court made on 6th March 2015 set aside
  3. 3.Order substituted allowing the Preliminary Objection by the Attorney General
  4. 4.The respondents' claim filed on 6th June 2014 struck out in its entirety
  5. 5.Respondents to bear the costs of the appeal and of the struck out claim

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

PW
majority

Wrote the judgment

Lead judgment. Held the preliminary objection was a pure point of law properly before the court and sound in substance: the cause of action for wrongful/unfair termination accrued on dismissal (2 February 2010), not on acquittal in the criminal trial; the claim filed 13 June 2014 was time-barred under section 90 of the Employment Act; Mbowa was distinguishable as a malicious prosecution case. Would allow the appeal, set aside the ruling and strike out the claim.

It follows that I would allow the appeal, set aside the Ruling and order of the Employment and Labour Relations Court made on 6th March 2015 and substitute therefor an order allowing the Preliminary Objection by the Attorney General.p. 10
RN
dissenting

Wrote the judgment

Dissented. Found the amended preliminary objection did not meet the Mukisa Biscuit threshold: facts were disputed and needed ascertainment (compliance with section 87, exhaustion of internal mechanisms, prematurity, computation of limitation). Would have dismissed the appeal with costs, but deferred to the majority view of Waki JA.

The upshot of all the above is that I find the appellant's appeal has no merit. I would dismiss it with costs to the respondents both on appeal and the court below.p. 5
PK
concurring

Wrote the judgment

Agreed fully with Waki JA. The preliminary objection was a jurisdictional plea, a pure point of law properly taken and rightly sustainable; the claim was filed well outside the three-year period in section 90; acquittal in criminal proceedings was not a prerequisite to a claim for reinstatement or damages for unlawful termination.

As to whether it should have been sustained, I, like Waki JA, would answer in the affirmative.p. 12
On appeal from
Employment and Labour Relations Court of Kenya at Nyeri
ELRC No. 73 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute from the Employment and Labour Relations Court (no specific constitutional provision cited in the judgment)

Relief refused

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Nambuye JA's proposed dismissal of the appeal with costs to the respondents

The majority view of Waki and Kiage JA prevailed; Nambuye JA deferred to the majority

p. 5

Costs

The respondents shall bear the costs of the appeal and of the struck out claim.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It follows that I would allow the appeal, set aside the Ruling and order of the Employment and Labour Relations Court made on 6th March 2015 and substitute therefor an order allowing the Preliminary Objection by the Attorney General.
p. 10disposition - appeal allowed
Consequently the respondents’ claim filed on 6th June 2014 shall be and is hereby struck out in its entirety. The respondents shall bear the costs of the appeal and of the struck out claim.
p. 11final orders - striking out and costs
A dismissal is lawful or unlawful and therefore actionable or not on the date it is effected. A dismissed employee need not await the outcome of any criminal proceedings that may be mounted concurrently with internal disciplinary processes that may culminate in the impugned dismissal.
p. 12accrual of cause of action in dismissal claims
The claim was time barred as at 1st February 2013, and I so hold.
limitation under section 90 Employment Act
The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.
p. 6preliminary objections
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.
p. 7definition of cause of action

Issues in the judgment

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minor

Internal inconsistency in the dates of dismissal and filing: the majority judgment states the respondents 'had a clear cause of action... when they received their letters of dismissal on 2nd October 2010' although elsewhere the dismissal date is stated as 2nd February 2010; the filing date also appears variously as 13th June 2014, 16th June 2014 and 6th June 2014.

minor

The appeal-from headings are inconsistent between the three judgments: the first describes the court below as the 'Employment and Labour Relations Court... in ELRC No. 73 of 2014' while the other two describe it as the 'High Court of Kenya at Nyeri... in E. L. C. No. 73 of 2014'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Attorney General & another v Githinji & another (Civil Appeal 21 of 2015) [2016] KECA 817 (KLR)", Case Analysis (2016). Civil Appeal No. 21 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/817/eng@2016-02-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.