Julius Situma v Teachers Service Commission [2015] KEELRC 1630 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction over employment disputes disguised as constitutional petitions
The claim emanates from an employment relationship and cannot escape limitation and other employment law requirements by being filed as a petition
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.
Limitation of actions
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
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.
Non-retrospectivity of the Constitution, 2010
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
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.
Distinction between Teachers Service Commission and the Teachers Appeals Tribunal
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
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 The Tribunal was created under Section 11 of the repealed TSC Act Cap 212 and ceased to exist upon repeal, so the Petitioner's appeal cannot be determined and the TSC cannot be compelled on that footing.
Effect of pending appeal on removal from register
The Petitioner was not entitled to remain on the register and payroll pending appeal absent a stay of the dismissal decision
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 12th February 2015 is dismissed
- 2.No orders for costs - each party to bear own costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joseck Muthuri Mwarania v Teachers Service Commission [2019] KEELRC 2497 (KLR)[2019] KEELRC 2497 (KLR)17 Jan 2019
- Loice Mutai v Kenya Renenue Authority [2018] KEELRC 1972 (KLR)[2018] KEELRC 1972 (KLR)27 Apr 2018
- Loice Mutai v Kenya Renenue Authority [2018] KEELRC 1972 (KLR)[2018] KEELRC 1972 (KLR)27 Apr 2018
- Jared Mwinami Akali v Teachers Service Commission [2016] KEELRC 123 (KLR)[2016] KEELRC 123 (KLR)3 Nov 2016
Cite this brief
#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.