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ELRCStruck OutIndustrial Petition No. 244 of 2014· [2015] KEELRC 522 (KLR)

Richard Ndungu Kangara v Teachers Service Commission [2015] KEELRC 522 (KLR)

Industrial Court of Kenya
30 July 2015
MOMaureen Onyango
1,698 words in judgment
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The bottom line

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A teacher's decade-old dismissal claim was struck out because filing a constitutional petition cannot dodge the Employment Act's time limits in Kenya.

What this practically means

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Executive summary

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The petitioner, a teacher employed by the Teachers Service Commission since 1983, was dismissed by letter dated 31st March 2004 on grounds of deserting duty in September 2003. He claimed he never deserted duty, having compiled the standard six mark list for term III ending 30th November 2003, and alleged he was never heard on the desertion charge. He sought declarations that his rights under Articles 28, 41 and 47 of the 2010 Constitution were violated, reinstatement without loss of benefits, or alternatively damages, plus costs. The Respondent maintained the petitioner was interdicted, invited to a hearing where he pleaded guilty, dismissed, and unsuccessfully appealed. It also demanded a refund of Kshs.30,726.50 in overpaid salary, and denied any authorised promise of reinstatement, pointing to letters by one P. M. Mwamba which the court found were pursued in a personal capacity. The court framed three issues: limitation, propriety of the petition, and entitlement to relief. It held the claim was statute barred, the six-year period applicable at dismissal having expired on 1st April 2010. Following Josephat Ndirangu v Henkel Chemicals, it held the petitioner could not bypass the Employment Act by petitioning directly under Article 41, and that he had not demonstrated specific constitutional breaches, the record showing he received a fair hearing and pleaded guilty. Relying on Joseph Thuo Mwaura, it held the 2010 Constitution does not apply retrospectively to a 2004 dismissal. The petition was struck out with no orders for costs.

Key legal issues

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01

Limitation

Holding

The claim, filed well beyond the six-year limitation period applicable at the time of the 2004 dismissal, was statute barred and the court had no jurisdiction to entertain it

Reasoning

The petitioner was dismissed on 31st March 2004 and his appeal rejected by letter dated 8th June 2004. The applicable limitation period was six years, expiring 1st April 2010. Filing the petition in 2014 was out of time, and the petition could not be used to circumvent the limitation regime governing employment claims.

p. 4
02

Improper use of constitutional petition

Holding

The petitioner used a constitutional petition to evade the Employment Act and the limitation period, and did not demonstrate specific violations of Articles 41 and 47

Reasoning

The court found the evidence showed the petitioner was given a fair hearing, responded to the charges and pleaded guilty before dismissal. He failed to demonstrate specific acts or omissions breaching Articles 41 and 47. Following Radido J in Josephat Ndirangu v Henkel Chemicals, the court held a party cannot bypass the Employment Act regime by petitioning directly under Article 41.

p. 4
03

Retrospectivity of the 2010 Constitution

Holding

The 2010 Constitution could not apply to a dismissal effected in 2004, so the petitions founded on Articles 28, 41 and 47 failed

Reasoning

All prayers relied on provisions of the 2010 Constitution, yet the termination occurred on 31st March 2004, before the Constitution was enacted. Adopting Majanja J's holding in Joseph Thuo Mwaura & 82 Others v Attorney General, the court held constitutional provisions do not operate retrospectively.

p. 4

Legal principles established

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  • A litigant should not avoid the provisions of the Employment Act on unfair termination by relying directly on Article 41 in a constitutional petition
  • The provisions of the Constitution of Kenya 2010 do not apply retrospectively to events predating its enactment

Court orders

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  1. 1.The Petition is struck out with no orders for costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(2)(b) and (c), 20(1), 21(1), 28, 41, 47(1)
  • Employment Actprovisions on unfair termination and wrongful dismissal

Cases cited (2)

  • Josephat Ndirangu v Henkel Chemicals (A.E.) Ltd
    [2013] eKLR
  • Joseph Thuo Mwaura & 82 Others v Attorney General
    Petition No. 498 of 2009
Jurisdiction invoked
Industrial Court jurisdiction over employment and labour relations disputes; court found it lacked jurisdiction because the claim was statute barred

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, "Richard Ndungu Kangara v Teachers Service Commission [2015] KEELRC 522 (KLR)", Case Analysis (2015). Industrial Petition No. 244 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/522/eng@2015-07-30

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