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ELRCDismissedNot stated in judgment (Notice of Motion dated 12th February 2015 within a petition)· [2015] KEELRC 1630 (KLR)

Julius Situma v Teachers Service Commission [2015] KEELRC 1630 (KLR)

Employment and Labour Relations Court
24 July 2015
1,887 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A dismissed teacher's constitutional petition failed because he waited too long: Kenyan employment claims must be filed within three years, and no Constitution claim bypasses that rule.

What this practically means

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Executive summary

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The Petitioner, a former primary school teacher employed by the Teachers Service Commission, was interdicted in April 2008 on charges of immoral behaviour involving a pupil and forging an exculpatory letter. Following a disciplinary hearing on 10th September 2008 he was dismissed and his name removed from the register of teachers, with a right to appeal to the Teachers Appeals Tribunal within 28 days. He received the letters in June 2010, lodged an appeal on 5th July 2010 and paid the appeal fees, but received no response. By Notice of Motion dated 12th February 2015 he sought prohibition against the tribunal, contending that the dismissal and removal violated the Constitution, the TSC Act and Regulations and natural justice, and that pending his appeal he was entitled to remain on the register and payroll. The Respondent opposed, arguing the claim arose from an employment relationship, was disguised as a constitutional petition, and was statute barred under Section 90 of the Employment Act; it further contended the Tribunal is a separate entity that no longer exists after the repeal of Cap 212. The court agreed with the Respondent. Applying John Miriti Mbarire and the Harrikissoon principle, it held that the constitutional framing could not jettison employment law requirements. Section 90's three-year limitation was held mandatory: termination on 10th September 2008 meant the claim was statute barred by 10th September 2011, ousting jurisdiction. The court also held the 2010 Constitution does not apply retrospectively to claims arising in 2008, that the pending appeal was directed to the wrong, now non-existent entity, and that absent a stay the dismissal remained valid. The application was dismissed with no orders for costs.

Key legal issues

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01

Jurisdiction over employment disputes disguised as constitutional petitions

Holding

The claim emanates from an employment relationship and cannot escape limitation and other employment law requirements by being filed as a petition

Reasoning

The court endorsed the Harrikissoon principle that fundamental rights remedies are diminished when misused as a substitute for normal judicial control of administrative action. The elevation of labour rights to the Bill of Rights under the 2010 Constitution does not displace the substantive and procedural law on employment, including Section 90 of the Employment Act.

p. 3
02

Limitation of actions

Holding

The Petitioner's employment was terminated on 10th September 2008, so the claim became statute barred on 10th September 2011 and the court has no jurisdiction

Reasoning

Section 90 of the Employment Act mandates that no action arising from a contract of service may be instituted beyond three years from the act complained of. The dismissal and removal from the register occurred on 10th September 2008; the suit filed in 2015 far exceeded the three-year window, ousting the court's jurisdiction.

p. 4
03

Non-retrospectivity of the Constitution, 2010

Holding

Claims founded on Articles 25(c), 27(1), 41 and 50 arising on 10th September 2008, before promulgation of the 2010 Constitution, cannot be sustained under it

Reasoning

Following Joseph Thuo Mwaura, the court held the 2010 Constitution does not apply retrospectively. The causes of action arose in 2008 under the old constitutional order, so the Bill of Rights provisions relied on were unavailable to the Petitioner.

p. 4
04

Distinction between Teachers Service Commission and the Teachers Appeals Tribunal

Holding

The appeal pending against removal from the register was lodged with the wrong entity; the Tribunal is a separate legal entity and no longer exists after the repeal of Cap 212

Reasoning

The Respondent argued, and the court accepted, that the TSC and the Appeals Tribunal are distinct legal persons. The Tribunal was created under Section 11 of the repealed TSC Act Cap 212 and ceased to exist upon repeal, so the Petitioner's appeal cannot be determined and the TSC cannot be compelled on that footing.

p. 4
05

Effect of pending appeal on removal from register

Holding

The Petitioner was not entitled to remain on the register and payroll pending appeal absent a stay of the dismissal decision

Reasoning

The court held that removal from the register took effect immediately; only a stay would have preserved the Petitioner's position. None was obtained, so the Respondent's decision remained valid and enforceable until overturned on appeal, which has not occurred.

p. 4

Legal principles established

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  • Section 90 of the Employment Act is mandatory: no civil action based on or arising out of a contract of service may be instituted after three years from the wrong complained of
  • A constitutional petition cannot be used to circumvent limitation and other substantive and procedural requirements of employment law
  • The Constitution, 2010 does not apply retrospectively to claims arising before its promulgation

Court orders

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  1. 1.The Notice of Motion dated 12th February 2015 is dismissed
  2. 2.No orders for costs - each party to bear own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Teachers Service Commission Act, Cap 212Section 7(3b)
  • Teachers Service Commission Act, Cap 212 (repealed)Section 11
  • Teachers Service Commission ActSection 21
  • Code of Regulations for TeachersRegulation 66(2)(a) and 66(2)(g)
  • Limitation of Actions ActSection 4(1)
  • Constitution of Kenya, 2010Articles 25(c), 27(1), 41 and 50

Cases cited (5)

  • JOHN MIRITI MBARIRE V ATTORNEY GENERAL
    [2014] eKLR
  • SAMSON O. NGONGA V PUBLIC SERVICE COMMISSION & 5 OTHERS
    [2013] eKLR
  • Kemrajh Harrikissoon vs the Attorney General of Trinidad and Tobago
    [1979] UKPC 3
  • Josephat Ndirangu vs Henkel Chemical (EA) Limited
    [2013] eKLR
  • Joseph Thuo Mwaura & 82 Others v Attorney General
    Petition No. 498 of 2009
Jurisdiction invoked
Constitutional petition (Articles 25(c), 27(1), 41 and 50 of the Constitution, 2010 invoked); jurisdiction contested under Section 90 of the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Julius Situma v Teachers Service Commission [2015] KEELRC 1630 (KLR)", Case Analysis (2015). Not stated in judgment (Notice of Motion dated 12th February 2015 within a petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1630/eng@2015-07-24

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