Faith Njoki Muthee v G4s Security Services (Kenya) Ltd [2016] KEELRC 903 (KLR)
The bottom line
#Kenya's Employment Court struck out a late unfair dismissal claim, confirming you have only three years from dismissal to sue under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was time-barred under Section 90 of the Employment Act
Yes - the suit was filed over 2 years and 8 months after the expiry of the three-year limitation period, and was struck out
Section 90 of the Employment Act requires suits arising from employment or contract of service to be commenced within three years of accrual of the cause of action. Following persuasive authority including the Court of Appeal in Attorney General & Another v Andrew Maina Githinji & Another, the cause of action accrued upon dismissal on 8th January 2009, not upon the conclusion of the criminal case. The suit filed on 15th October 2014 was therefore statute-barred.
Whether Section 90 of the Employment Act is inconsistent with Article 159(2)(d) of the Constitution
No - limitation is not undue regard to procedural technicalities
The Claimant argued that Section 90 conflicts with Article 159(2)(d), which requires justice to be administered without undue regard to procedural technicalities. The court held that undue regard to technicalities refers to unwarranted consideration of procedure, and a plea of limitation is a substantive point of law, not a mere technicality. The Constitution being supreme, no inconsistency was found here.
Whether the pending Court of Appeal matter (Torgbor v Ojuok) barred determination of the preliminary objection
No - the stay in that case was not a blanket stay and applied only to the parties in that appeal
The Claimant sought a stay pending the Court of Appeal's determination on whether the ELRC can entertain statute-barred claims. The court held that the decision in Torgbor v Ojuok would apply purely to the suit in that appeal, and the stay granted was not a blanket stay, so it could not bar this Court from hearing the preliminary objection.
Legal principles established
#- A cause of action in employment arises upon dismissal/receipt of termination letter, not upon conclusion of criminal proceedings; suits under the Employment Act must be filed within three years
- A plea of limitation is a proper preliminary objection and does not offend Article 159(2)(d) of the Constitution
Court orders
#- 1.The preliminary objection succeeds
- 2.The Claimant's suit is struck out
- 3.Costs to the Respondent/Applicant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes; preliminary objection on limitation under Section 90 of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Caroline Wambui Karugo v Murang’a County Assembly Service Board [2019] KEELRC 174 (KLR)[2019] KEELRC 174 (KLR)11 Dec 2019
Cite this brief
#Cite this brief
Caselaw, "Faith Njoki Muthee v G4s Security Services (Kenya) Ltd [2016] KEELRC 903 (KLR)", Case Analysis (2016). Cause No 1817 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/903/eng@2016-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.