Samuel Olunga Odera Owino v Attorney General & another [2015] KEELRC 127 (KLR)
The bottom line
#Kenya's Employment Court dismissed a 29-year-old police dismissal claim because it was filed far too late and unfair termination did not exist in 1984.
What this practically means
#Executive summary
#Key legal issues
#Limitation under the Public Authorities Limitation Act
The claim filed in 2013 arising from a dismissal of 28 December 1984 is time barred, the lapse of over 29 years being unmitigated
Section 3(2) of the Public Authorities Limitation Act bars contract-based proceedings against government after three years. The cause of action arose on the date of the dismissal letter. No leave to file out of time was obtained and no good cause was shown; the Claimant's assertion that he was warned to remain silent does not excuse the delay.
Retrospective application of unfair termination concepts
Wrongful and unfair termination are concepts introduced by the Employment Act, 2007 and cannot ground a claim based on a 1984 dismissal governed by the repealed Employment Act, Cap 226
The court relied on its earlier decisions holding that Cap 226 made no provision for unfair termination. Since the cause of action predates June 2008 when the Employment Act, 2007 became operational, the modern remedies are unavailable to the Claimant.
Res judicata and litigation in instalments
Although the res judicata objection was found academic on the distinct subject matter, the Claimant's splitting of claims was deprecated as an attempt at a second bite at the cherry
The prior constitutional suit concerned fundamental rights to liberty, security of person and protection of law, not employment reliefs, so strict res judicata did not apply. However, the employment claims were within the Claimant's knowledge when he filed the 2004 suit, and litigation must come to an end.
Legal principles established
#- The concept of unfair termination was introduced by the Employment Act, 2007 and cannot be applied retrospectively to dismissals occurring under the repealed Employment Act, Cap 226
- Proceedings founded on contract against a public authority must be filed within three years under the Public Authorities Limitation Act, and the limitation bar cannot be avoided without leave or good cause
- A litigant cannot litigate in instalments; all known causes of action should be brought in one suit
Court orders
#- 1.The preliminary objection is allowed
- 2.The claim is dismissed
- 3.Each party shall bear their own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction; preliminary objection under section 3(2) of the Public Authorities Limitation Act Cap 39 and section 7 of the Civil Procedure Act Cap 21
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.
- Bhupinder Singh Dogra v Attorney General [2019] KECA 658 (KLR)[2019] KECA 658 (KLR)5 Apr 2019
Cite this brief
#Cite this brief
Caselaw, "Samuel Olunga Odera Owino v Attorney General & another [2015] KEELRC 127 (KLR)", Case Analysis (2015). Not stated in judgment (Claim filed 7th August 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/127/eng@2015-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.