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ELRCDismissedMemorandum of Claim dated 7th July, 2015· [2016] KEELRC 424 (KLR)

Nyanamba O. Steve v Teachers Service Commission [2016] KEELRC 424 (KLR)

Employment and Labour Relations Court
29 September 2016
MOMAUREEN ONYANGO
1,154 words in judgment
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The bottom line

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Kenya's Employment Court confirmed that employment claims filed more than three years after dismissal are dead on arrival — the deadline is strict and cannot be excused.

What this practically means

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Executive summary

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The Claimant alleged unfair dismissal and sought reinstatement or, in the alternative, payment of all outstanding salary from the date of dismissal to the date of judgment, by a Memorandum of Claim dated and filed on 7th July, 2015. The Respondent filed a preliminary objection contending that the claim was statutorily time barred under section 90 of the Employment Act and that the court lacked jurisdiction. The objection was argued by consent through written submissions. The Respondent showed that the Claimant was interdicted on 28th March, 2011 and dismissed on 4th August, 2011, so the three-year limitation period lapsed on 4th August, 2014, well before the claim was filed. The Respondent relied on Josephat Ndiragu v Henkel Chemicals and James Muriithi Ngotho v Judicial Service Commission to argue that limitation is jurisdictional and cannot be cured under Article 159(2)(d). The Claimant argued there was a conflict between the six-year period in section 4(1) of the Limitation of Actions Act and the three-year period in section 90, requiring the court to administer substantive justice. Relying on a recent Court of Appeal decision and the Supreme Court's holding in Samuel Kamau Macharia, the court held that limitation is substantive, not a curable technicality; once a claim is barred, the right is extinguished and jurisdiction cannot be exercised. It found no conflict between the two statutes, section 90 expressly overriding section 4(1). The preliminary objection was allowed and the claim dismissed.

Key legal issues

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01

Statutory limitation of employment claims under section 90 of the Employment Act

Holding

The claim filed on 7th July, 2015, nearly four years after the dismissal on 4th August, 2011, is time barred and incurably defective

Reasoning

Section 90 requires that civil actions arising out of the Employment Act or a contract of service be commenced within three years of the act complained of. The Claimant was dismissed in August 2011 and should have filed by August 2014. The claim filed in July 2015 falls outside the statutory period, extinguishing the right and ousting the court's jurisdiction.

p. 1
02

Whether Article 159(2)(d) cures a limitation defect

Holding

No - limitation is substantive and jurisdictional, not a procedural technicality

Reasoning

Relying on the Court of Appeal decision in Kisumu Civil Appeal No.6 of 2015 and the Supreme Court in Samuel Kamau Macharia, the court held that jurisdiction flows from the Constitution or legislation and cannot be arrogated where the law extinguishes the claim. Limitation periods cannot be equated to procedural technicalities under Article 159(2)(d).

p. 3
03

Alleged conflict between section 4(1) of the Limitation of Actions Act and section 90 of the Employment Act

Holding

There is no conflict; section 90 expressly overrides section 4(1) by its 'notwithstanding' clause and governs employment claims

Reasoning

The court found the two provisions do not conflict because section 90 begins with 'Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act' and applies specifically to civil actions arising out of the Employment Act or contracts of service. The six-year period in section 4(1) therefore has no application to this claim.

p. 3

Legal principles established

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  • Limitation under section 90 of the Employment Act is a jurisdictional, not procedural, issue; once a claim is barred, the right is extinguished and the court's jurisdiction cannot be exercised
  • There is no conflict between section 4(1) of the Limitation of Actions Act and section 90 of the Employment Act; the 'notwithstanding' clause in section 90 makes it the specific and applicable provision for employment claims

Court orders

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  1. 1.Preliminary objection allowed
  2. 2.The claim filed by the Claimant dismissed on grounds that it offends the mandatory provisions of section 90 of the Employment Act

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Act (Cap. 22)section 4(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Law Reform Actsection 9(3)

Cases cited (4)

  • Josephat Ndiragu v Henkel Chemicals
  • James Muriithi Ngotho & 4 Others v Judicial Service Commission
    [2012]
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Kisumu Civil Appeal No.6 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; limitation challenged under section 90 of the Employment Act No. 11 of 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyanamba O. Steve v Teachers Service Commission [2016] KEELRC 424 (KLR)", Case Analysis (2016). Memorandum of Claim dated 7th July, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/424/eng@2016-09-29

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