Musa Mwangi Mathu & another v National Police Service Commission & 2 others [2016] KEELRC 122 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Applicable limitation statute for claims by former Kenya Police officers dismissed in 2004
Section 90 of the Employment Act, 2007 does not apply; the Public Authorities Limitation Act governs
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.
Whether Benjamin Muema v Attorney General & 2 Others saves the claim
The ratio is inapplicable because the claims arise from an ordinary employment contract, not mixed civil, military and constitutional principles
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.
Whether the court has jurisdiction over the time-barred claim
The court lacks jurisdiction to entertain a claim filed way out of time; the claim is struck out
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.
Legal principles established
#- 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
#- 1.The claim is struck out with no order for costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.