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ELRCStruck OutCause No. 132 of 2014· [2015] KEELRC 347 (KLR)

Frank Neto Wanyama v National Police Service Commission [2015] KEELRC 347 (KLR)

Employment & Labour Relations Court of Kenya
30 October 2015
MOMaureen Onyango
1,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a police officer's 2014 claim over a 1998 dismissal because it was filed far past the six-year legal deadline.

What this practically means

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Executive summary

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The Claimant, a former police officer, alleged that he was enlisted into the Kenya Police Force in 1991 and was dismissed with effect from 1st March 1998 (signal received 5th March 1998) after disciplinary proceedings arising from the publicity of poor living conditions at the Rapid Anti-Banditry Unit in Kitale. He claimed that although he was convicted on two disciplinary counts (reprimand and dismissal), he appealed for reinstatement, later learned of a reinstatement signal, remained on the payroll and received payslips but no salary. He sought an order posting him to a police station within Kenya, salary arrears from 5th March 1998, or in the alternative payment of his dues, plus costs. The Respondent filed no defence and the hearing proceeded ex parte on 21st September 2015 after proof of service. The court, however, considered the limitation question of its own motion. It held that the employment was terminated on 5th March 1998 and that under Section 4(1) of the Limitation of Actions Act the claim, filed on 11th June 2014, was well outside the six-year period; no extension of time had been sought. Citing Divecon v Samani and the Lillian 'S' jurisdiction principle as restated by the Supreme Court, it held that limitation extinguishes the right of action and compromises jurisdiction. The claim was struck out. No costs order was pronounced in the judgment.

Key legal issues

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01

Whether the claim was statute-barred under the Limitation of Actions Act

Holding

The claim, arising from dismissal on 5th March 1998 but filed on 11th June 2014, was filed outside the six-year limitation period without leave for extension of time.

Reasoning

The court noted that under Section 4(1) of the Limitation of Actions Act a claim founded on contract must be filed within six years. No application for extension of time was made and the pleadings did not address the delay. The claim was therefore on its face bad in law.

p. 2
02

Whether the court had jurisdiction over the time-barred claim

Holding

The court had no jurisdiction to hear and determine the claim and struck it out.

Reasoning

Relying on Divecon v Samani and the Lillian 'S' case as restated by the Supreme Court, the court held that limitation extinguishes the right of action and compromises the court's jurisdiction; a court without jurisdiction must down tools and cannot make one more step.

p. 3
03

Procedural requirements for claims against a Government agency

Holding

A claim against a Government agency should have been filed against the Attorney General after prior notice under the Government Proceedings Act and the Civil Procedure Rules.

Reasoning

The court observed that because the Respondent is a Government agency, the claim ought to have been brought against the Attorney General after prior statutory notice as required by the Government Proceedings Act and Order Rule 11 of the Civil Procedure Rules, none of which was done.

p. 2

Legal principles established

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  • Limitation extinguishes the right to claim and compromises the jurisdiction of the court; a claim founded on contract brought after six years cannot be entertained.
  • Jurisdiction flows from the law and a court without jurisdiction must down tools.

Court orders

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  1. 1.The claim is struck out for having been filed out of time without leave, the court having no jurisdiction to hear and determine it

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)
  • Government Proceedings Actprior notice provisions
  • Civil Procedure RulesOrder Rule 11 (as printed)
  • Police RegulationsC/Reg. 3, sub-regulations 13 and 41

Cases cited (3)

  • Divecon v Samani
    (1995 - 1998) 1 EA
  • Motor Vessel "SS Lillian"
    [1989] KLR 1
  • In the matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution, Constitutional Application No. 2 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the relevant statute; the court held it was ousted by the Limitation of Actions Act, Section 4(1)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Frank Neto Wanyama v National Police Service Commission [2015] KEELRC 347 (KLR)", Case Analysis (2015). Cause No. 132 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/347/eng@2015-10-30

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