KANGARA WANYOIKE V TEACHERS SERVICE COMMISSION & ANOTHER [2012] KEELRC 23 (KLR)
The bottom line
#Kenya's employment court threw out a teacher's 12-year-late challenge to his 1999 dismissal, confirming that employment claims must be filed within three years.
What this practically means
#Executive summary
#Key legal issues
#Limitation of actions in employment claims
The claim, filed in February 2011 against a dismissal of 26th November 1999 (last communication from the employer in 2007), is barred by Section 90 of the Employment Act
The claimant was dismissed in November 1999 and last heard from the 1st respondent in 2007 when his appeal was confirmed. He filed suit in 2011 without seeking extension of time. The court held that Section 90 bars the claim as out of time and that parties cannot sit on their rights and then rush to court; he could have sought extension of time but did not.
Substantive fairness of the dismissal
The dismissal for absenteeism and desertion was founded on reasonable grounds; the grounds were never challenged and the claimant's own evidence confirmed desertion
The claimant admitted on cross-examination that he never reported to Manjuu Primary School and vowed never to return, despite the employer's right to post teachers anywhere. The dismissal letter set out grounds of habitual absenteeism and desertion which were not negated in evidence. Allegations of corruption were unsupported. This constituted gross misconduct under Section 43(4) of the Employment Act.
Reinstatement as a remedy
Reinstatement was refused because the termination was not shown to be substantively unfair
Reinstatement depends on a finding that termination was substantively unfair. Here the evidence, including the claimant's own admissions and contradicting witnesses, showed reasonable grounds for dismissal, so this was not a clear case warranting reinstatement.
Prosecution of the claim against the 2nd respondent
The claim against KNUT was abandoned after an earlier ruling declared it incompetent; the claimant ignored the court's warning to prosecute it
Following the ruling of 15th November 2011 dismissing the Notice of Motion and declaring that part of the claim incompetent, the claimant neither restated it nor made submissions on it. Despite a warning from the court, he declined to address it, so no relief was available against the 2nd respondent.
Legal principles established
#- Claims based on employment or a contract of service must be commenced within three years of the act complained of, per Section 90 of the Employment Act, notwithstanding Section 4(1) of the Limitation of Actions Act
- Summary dismissal may lawfully be founded on absenteeism without leave, wilful neglect of duty, or refusal to obey a lawful and proper command under Section 43(4) of the Employment Act
- Reinstatement is reserved for the clearest cases of wrongful dismissal and unfair termination
Court orders
#- 1.The case is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment and labour relations disputes (claim based on contract of service with the Teachers Service Commission)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Robert Tom Martins Kibisu v Republic[2018] KESC 34 (KLR)28 Feb 2018
Cite this brief
#Cite this brief
Caselaw, "KANGARA WANYOIKE V TEACHERS SERVICE COMMISSION & ANOTHER [2012] KEELRC 23 (KLR)", Case Analysis (2012). Cause 271 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/23/eng@2012-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.