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ELRCStruck OutCause No 2281 of 2015· [2016] KEELRC 122 (KLR)

Musa Mwangi Mathu & another v National Police Service Commission & 2 others [2016] KEELRC 122 (KLR)

Employment and Labour Relations Court
16 December 2016
419 words in judgment
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The bottom line

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Former Kenya Police officers lost their unfair dismissal claim because they waited eleven years too long to file it in court.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Linnet Ndolo J on 16th December 2016, determines a preliminary objection raised by the Respondents by notice dated 19th January 2016 on the ground that the Claimants' claim is time barred. The objection was urged by written submissions by consent. The Respondents initially invoked Section 90 of the Employment Act, 2007 and the Limitation of Actions Act, and later added Section 3(2) of the Public Authorities Limitation Act. The court held Section 90 of the Employment Act inapplicable for two reasons: the statute had not been enacted when the cause of action arose in 2004, and Section 3(2) of that Act expressly excludes members of the Kenya Police, of whom the Claimants were members, from its application. The applicable limitation law was therefore the Public Authorities Limitation Act, whose Section 3(2) bars contract proceedings against the Government after three years. The Claimants relied on Benjamin Muema v Attorney General & 2 Others [2006], where Ojwang J held that matters of mixed civil law, military law and constitutional principles cannot be determined by an interpretation of limitation periods. Examining the Memorandum of Claim dated 18th December 2015, the court concluded the claims arise from an ordinary employment contract, rendering that ratio inapplicable. The claim, filed in 2015 for dismissals occurring in 2004, was found to be way out of time, and the court held it lacked jurisdiction to entertain it. The claim was struck out with no order for costs.

Key legal issues

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01

Applicable limitation statute for claims by former Kenya Police officers dismissed in 2004

Holding

Section 90 of the Employment Act, 2007 does not apply; the Public Authorities Limitation Act governs

Reasoning

The court reasoned that the Employment Act, 2007 did not exist when the cause of action accrued in 2004, so it could not apply retroactively. Further, Section 3(2) of that Act expressly excludes the Kenya Police, of whom the Claimants were members. The applicable limitation law is therefore the Public Authorities Limitation Act, whose Section 3(2) bars contract proceedings against Government after three years.

p. 1
02

Whether Benjamin Muema v Attorney General & 2 Others saves the claim

Holding

The ratio is inapplicable because the claims arise from an ordinary employment contract, not mixed civil, military and constitutional principles

Reasoning

The Claimants relied on Ojwang J's decision in Benjamin Muema that matters of mixed civil law, military law and constitutional principles cannot be determined by interpreting limitation periods. On examining the Memorandum of Claim, the court concluded the claims arise from an ordinary employment contract as defined in law, so that ratio does not assist the Claimants.

p. 2
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Whether the court has jurisdiction over the time-barred claim

Holding

The court lacks jurisdiction to entertain a claim filed way out of time; the claim is struck out

Reasoning

Having found the applicable limitation period under Section 3(2) of the Public Authorities Limitation Act had expired (dismissals in 2004, suit filed in 2015), the court held it had no jurisdiction to entertain the claim. Jurisdiction being fundamental, the claim was struck out rather than dismissed on merits, with no order for costs.

p. 2

Legal principles established

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  • Where a cause of action arose before the Employment Act, 2007 was enacted, Section 90 of that Act does not apply; and Section 3(2) of the Employment Act expressly excludes members of the Kenya Police from its application
  • Claims arising from an ordinary employment contract are subject to the limitation period in Section 3(2) of the Public Authorities Limitation Act; the Benjamin Muema ratio on mixed civil/military/constitutional matters is inapplicable to such claims

Court orders

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  1. 1.The claim is struck out with no order for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActNot specified
  • Public Authorities Limitation ActSection 3(2)

Cases cited (1)

  • Benjamin Muema v Attorney General & 2 Others
    [2006]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Section 90 of the Employment Act, 2007 and the Limitation of Actions Act (as invoked in the preliminary objection)

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, "Musa Mwangi Mathu & another v National Police Service Commission & 2 others [2016] KEELRC 122 (KLR)", Case Analysis (2016). Cause No 2281 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/122/eng@2016-12-16

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