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Court of AppealDismissedCivil Appeal No 317 of 2014· [2017] KECA 420 (KLR)

David Ngugi Waweru v Attorney General & another (Civil Appeal 317 of 2014) [2017] KECA 420 (KLR)

Court of Appeal of Kenya
14 July 2017
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
4,095 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that the six-year clock to sue over dismissal starts on the day you are terminated — even if you pursue appeals or judicial review first.

What this practically means

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Executive summary

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The appellant, a former Judiciary clerical officer dismissed by the Judicial Service Commission for gross misconduct on 29th April 2004 (later downgraded to termination in the public interest on 13th July 2006), successfully pursued judicial review in the High Court, which on 17th June 2009 found the termination procedurally flawed but declined mandamus, suggesting the civil courts for damages. He waited until 15th April 2011 to file a claim before the Industrial Court. Nzioki Wa Makau, J. struck the claim out as time-barred under section 4(1) of the Limitation of Actions Act, the cause of action having accrued on the 2004 dismissal date. On appeal, Waki, Nambuye and Kiage, JJA unanimously affirmed. The court held that a cause of action for wrongful or unfair termination accrues on the date of termination, not on the conclusion of internal appeals or judicial review; that pursuing a parallel remedy does not stop time running (Boniface Inondi Otieno); that there is no discretion to extend the six-year limitation under section 4(1) LAA (Divecon v Samani); and that the American doctrine of equitable tolling, having statutory basis in the United States, does not apply in Kenya. It also confirmed that the Employment Act, 2007 was not retrospective and did not apply to the 2004 dismissal. The appeal was dismissed with no order as to costs.

Key legal issues

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01

When a cause of action accrues in an employment termination claim

Holding

It accrues on the date of dismissal/termination, not on the conclusion of internal appeals or judicial review; the appellant's cause of action accrued on 29th April 2004.

Reasoning

The court adopted the reasoning in Andrew Maina Githinji and Hilarion Mwabolo that accrual takes effect from the date of termination as communicated. A party pursuing an appellate disciplinary process or a judicial review detour does so at his own risk; statutory limitation periods continue to run. The appellant still had over a year within the limitation period after the JR judgment but failed to file suit until 15th April 2011.

p. 7
02

Whether pursuit of a parallel remedy or 'equitable tolling' suspends limitation

Holding

It does not. The Boniface Inondi Otieno decision holds that litigating in another court does not stop time running, and the American doctrine of equitable tolling has no application in Kenya absent statutory basis.

Reasoning

The court relied on its own decision in Boniface Inondi Otieno, where it rejected arguments that time spent litigating in another forum should be disregarded, holding that courts cannot look at one side only, as the sword of justice cuts both ways. The doctrine of equitable tolling has statutory footing in the United States and was not imported into Kenyan law.

p. 6
03

Retrospectivity of the Employment Act, 2007

Holding

The Act was not retrospective; the dismissal of 2004 was governed by section 4(1) of the Limitation of Actions Act (six years).

Reasoning

Applying Municipality of Mombasa v Nyali and Samuel Kamau Macharia, legislation affecting substantive rights is not construed retrospectively absent express words or necessary implication. The claim involved vested contractual rights and liabilities that would be affected. No cross-appeal was filed on the trial court's finding that the Employment Act did not apply.

p. 5
04

Nature of limitation as a jurisdictional bar

Holding

Limitation goes to jurisdiction and must be dealt with in limine; it is not a procedural or discretionary matter.

Reasoning

Following its own decision in Thuranira Karauri v Agnes Ncheche, the court restated that limitation is dealt with at the outset and is not a matter of discretion unless there is a specific application for extension. This justified upholding the striking out of the claim without trial.

p. 4

Legal principles established

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  • The cause of action for wrongful or unfair termination of employment accrues on the date of termination as communicated to the employee, and is not held in abeyance by any subsequent internal review, appeal, or judicial review proceedings.
  • There is no discretion to extend the six-year time limitation set under section 4(1) of the Limitation of Actions Act for contractual claims.
  • The pursuit of a parallel remedy in another court does not stop time from running under the Limitation of Actions Act.
  • The Employment Act, 2007 was not retrospective in effect; it did not apply to dismissals preceding its commencement.

Court orders

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  1. 1.Upheld the decision of the Industrial Court (ELRC) made on 16th June 2014 striking out the claim as time-barred
  2. 2.Appeal dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Limitation of Actions Act (Cap. 22)section 4(1)
  • Employment Act, Act No. 11 of 2007section 90
  • Public Authorities Limitation Actsection 3(2)
  • The New York Civil Practice Law and RulesCPLR 203(a)

Cases cited (18)

  • Benjamin Wachira vs Public Service Commission & Another
    [2014] eKLR
  • Hilarion Mwabolo vs Kenya Commercial Bank
    [2013] eKLR
  • Hawkins Wagunza Musonye vs Rift Valley Railways Kenya Limited
    [2015] eKLR
  • Divecon vs Samani
    [1995-1998] EA 48
  • Attorney General & Another vs Andrew Maina Githinji & Another
    [2016] eKLR
  • Republic vs Kenya Revenue Authority Ex parte Yaya Towers Limited
    [2008] eKLR
  • Keroche Breweries Limited & 6 Others vs Attorney General & 10 Others
    [2016] eKLR
  • Bonface Inondi Otieno vs Mehta Electricals Ltd
    [2016] eKLR
  • Heimeshoff vs Hartford Life & Accident Insurance Co. et. al.
    No. 12-729, 567 US 310 (2013)
  • Thuranira Karauri vs Agnes Ncheche
    [1997] eKLR
  • Municipality of Mombasa vs Nyali Limited
    [1963] EA 37
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Peterson Waweru Thinwa vs JSC
    Cause 941 of 2012 (ur)
  • Timothy M. Mukalo vs Reuben Alubale Shiramba & 3 Others
    [2005] eKLR
  • Peter Nyamai & 7 Others vs M. J. Clarke Limited
    [2013] eKLR
  • Drummond Jackson vs Britain Medical Association
    (1970) 2 WLR 688
  • Read vs Brown
    (1889) 22 QBD 128
  • Letang vs Cooper
    [1964] 2 All ER 929
On appeal from
Employment and Labour Relations Court (Industrial Court)
Not stated
Jurisdiction invoked
First appeal / appellate review under the Court of Appeal's statutory appellate jurisdiction over ELRC decisions (provision not expressly stated in the judgment)

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, "David Ngugi Waweru v Attorney General & another (Civil Appeal 317 of 2014) [2017] KECA 420 (KLR)", Case Analysis (2017). Civil Appeal No 317 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/420/eng@2017-07-14

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