Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment· [2016] KEELRC 123 (KLR)

Jared Mwinami Akali v Teachers Service Commission [2016] KEELRC 123 (KLR)

Employment and Labour Relations Court
3 November 2016
1,285 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a teacher's unfair dismissal claim because he filed it nearly five years late—the legal deadline is three years from dismissal.

What this practically means

#

Executive summary

#
The claimant, Jared Mwinami Akali, sued the Teachers Service Commission claiming that his dismissal and removal from the register of teachers on 24th June 2011 was wrongful and unprocedural. He sought a declaration to that effect, reinstatement with benefits or payment for the period out of employment and retirement on full benefits, plus costs. The respondent filed a preliminary objection contending that the claim, filed on 22nd February 2016, was statute barred under section 90 of the Employment Act, which imposes a mandatory three-year limitation period, and that the court therefore lacked jurisdiction. The claimant argued that the final dismissal letter was only served on 10th August 2015 after the outcome of his review application, relying on KUDHEIHA WORKERS v MASH PARK HOTELS and CHARLES MANONO v KNH. The court held that the cause of action crystallised on the date of dismissal, 24th June 2011, and that the pendency of an internal appeal or review does not suspend limitation. The claimant's authorities were held to be not binding, distinguishable and decided per incuriam, the Court of Appeal in Divecon v Samani and Kenya Airports Authority v Kisongochi having firmly established that limitation periods in contract cannot be extended. Applying the Supreme Court's decision in Samuel Kamau Macharia on jurisdiction, the court found it had no power to entertain the out-of-time claim. The preliminary objection succeeded and the claim was dismissed. The judgment contains no express costs order despite the respondent's prayer.

Key legal issues

#
01

Date of accrual of the cause of action

Holding

The cause of action crystallised on 24th June 2011, the date of dismissal and removal from the register of teachers

Reasoning

The claimant conceded in the statement of claim that he was dismissed by letter dated 24th June 2011. Limitation is reckoned from that date. Neither the internal appeal nor the delay in the reconstitution of the review machinery suspends or extends the limitation period; the claimant should have come to court when informed the Tribunal had ceased to exist.

p. 2
02

Whether the court can extend the limitation period

Holding

It cannot; there is no room for extension of limitation in contract, and to entertain an out-of-time claim would be to act without jurisdiction

Reasoning

Relying on Court of Appeal authority (Divecon v Samani; Kenya Airports Authority v Kisongochi) and the Supreme Court in Samuel Kamau Macharia, the court held that extension of limitation in contract is impermissible and that jurisdiction cannot be assumed beyond what the law confers. The claimant's authorities were treated as per incuriam and distinguishable.

p. 3
03

Whether the preliminary objection should succeed

Holding

Yes; the claim was filed on 22nd February 2016, almost five years after accrual, and is statute barred

Reasoning

The objection was raised as a pure point of law under section 90 of the Employment Act. The pleadings confirmed the dismissal date of 24th June 2011, and the suit filed on 22nd February 2016 was out of time, depriving the court of jurisdiction.

p. 3

Legal principles established

#
  • Section 90 of the Employment Act imposes a mandatory three-year limitation period for actions arising out of contract of service, which the court cannot extend
  • A cause of action in employment accrues on termination, and pendency of an appeal or review to the employer does not suspend limitation
  • A court's jurisdiction flows only from the Constitution or legislation and cannot be arrogated beyond what is conferred by law

Court orders

#
  1. 1.The preliminary objection succeeds
  2. 2.The claim is dismissed on the ground that it was filed out of time and the court has no jurisdiction to hear and determine it

Authorities

#

Legislation

  • Employment ActSection 90
  • Teachers Service Commission ActNot specified
  • Constitution of Kenya, 2010Not specified

Cases cited (9)

  • Julius Situma vs. Teachers Service Commission
    [2015] eKLR
  • Mbarire vs. Attorney General
    [2014] eKLR
  • Beatrice Kahai Adagala v The Postal Corporation of Kenya
    [2015] eKLR
  • Josephat Ndirangu v Henkel Chemicals (EA) LTD
    [2013] eKLR
  • KUDHEIHA WORKERS v MASH PARK HOTELS
    [2013] eKLR
  • CHARLES MANONO v KNH
    [2013] eKLR
  • Divecon v Samani
  • Kenya Airports Authority v Shadrack Abraham Kisongochi
  • SAMUEL KAMAU MACHARIA & ANOTHER v KENYA COMMERCIAL BANK LIMITED & 2 OTHERS
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, section 90 (limitation); claim founded on contract of service

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jared Mwinami Akali v Teachers Service Commission [2016] KEELRC 123 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/123/eng@2016-11-03

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