Jared Mwinami Akali v Teachers Service Commission [2016] KEELRC 123 (KLR)
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
#Key legal issues
#Date of accrual of the cause of action
The cause of action crystallised on 24th June 2011, the date of dismissal and removal from the register of teachers
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.
Whether the court can extend the limitation period
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
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.
Whether the preliminary objection should succeed
Yes; the claim was filed on 22nd February 2016, almost five years after accrual, and is statute barred
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.
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.The preliminary objection succeeds
- 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
- 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.