Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment (Claim filed 7th August 2013)· [2015] KEELRC 127 (KLR)

Samuel Olunga Odera Owino v Attorney General & another [2015] KEELRC 127 (KLR)

Industrial Court (Employment and Labour Relations Court)
30 November 2015
1,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The Respondents filed a preliminary objection to the Claimant's employment claim seeking reinstatement, salary arrears and general and exemplary damages arising from his 1984 removal from the Police Force following his arrest and detention during the attempted coup of August 1982. The objections were that the suit was time barred under section 3(2) of the Public Authorities Limitation Act Cap 39 and res judicata under section 7 of the Civil Procedure Act, the Claimant having earlier filed High Court Misc. No.1526 of 2004 (O.S.), in which he was compensated for violation of his fundamental rights to liberty, security of person and protection of the law. The court found the issue in dispute was wrongful and unfair termination, concepts introduced only by the Employment Act, 2007 and inapplicable to a 1984 dismissal governed by the repealed Employment Act Cap 226. It further held the suit, filed over 29 years after the dismissal, was hopelessly out of time with no leave or good cause excusing the delay; the Claimant's claim that he was instructed to remain silent was insufficient. On res judicata, the court found the issue academic since the prior suit concerned constitutional rights rather than employment, but deprecated litigating in instalments as a second bite at the cherry. The preliminary objection was allowed, the claim dismissed in its entirety, with each party bearing their own costs.

Key legal issues

#
01

Limitation under the Public Authorities Limitation Act

Holding

The claim filed in 2013 arising from a dismissal of 28 December 1984 is time barred, the lapse of over 29 years being unmitigated

Reasoning

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.

p. 3
02

Retrospective application of unfair termination concepts

Holding

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

Reasoning

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.

p. 2
03

Res judicata and litigation in instalments

Holding

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

Reasoning

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.

p. 3

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. 1.The preliminary objection is allowed
  2. 2.The claim is dismissed
  3. 3.Each party shall bear their own costs

Authorities

#

Legislation

  • Public Authorities Limitation Act Cap 39section 3(2); section 3
  • Civil Procedure Act Cap 21section 7
  • Employment Act, 2007general (unfair termination provisions)
  • Employment Act, Cap 226 (repealed)general
  • Limitation of Actions Actsection 3 (as referenced)
  • Constitution of Kenya, 2010not specified

Cases cited (4)

  • Samson O. Ngonga versus Public Service Commission & 5 Others
    [2013] eKLR
  • Michael Kimutai Ronoh & 2 Others versus Consolidated Bank of Kenya Limited & Others
    [2014] eKLR
  • Nyabuto Meroka versus Nairobi Bottlers Limited, Cause No.953 of 2012
  • Banking Insurance & Finance Union (K) (BIFU) versus Ukulima Sacco Society Limited, Cause No.1109 of 2011
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.

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.