Peter O Magero v Board of Governors, St. Augustine Soysambu Secondary School & another [2017] KEELRC 1973 (KLR)
The bottom line
#Kenya's Employment Court confirmed that the three-year clock to sue for unfair dismissal starts on the dismissal date, even if your internal appeal is still pending.
What this practically means
#Executive summary
#Key legal issues
#When does the cause of action for unfair dismissal accrue for limitation purposes?
It accrues at the point of termination or dismissal; a pending or undetermined internal appeal does not affect accrual or create a continuing injury
Applying his earlier decision in Stephen Kamau Karanja v Family Bank Ltd, the judge held that once services are terminated the injury is complete (a fait accompli). A legal wrong is suffered at termination; an appeal, successful or not, cannot revive or extend accrual. The three-year period under section 90 therefore began on 26 April 2012, and the claim filed on 2 May 2017 was outside it.
Does the employer's failure to determine an internal appeal create a continuing injury or sustain the cause of action?
No; only statutory, contractual or implied estoppel could sustain such a claim beyond the limitation period, and none was pleaded
The court acknowledged the fairness concerns of leaving an employee in limbo where the employer never concludes an internal appeal, but declined to import a condonation-of-delay doctrine, noting Kenyan law has not developed one. It suggested legislative amendment but held that, absent estoppel, the internal appeal's non-determination could not extend limitation.
Consequent jurisdiction of the Court
Having no jurisdiction over a time-barred claim, the Court struck out the Memorandum of Claim
Because the claim offended the mandatory limitation provision in section 90 of the Employment Act, the Court lacked jurisdiction to determine it and upheld the preliminary objection in full, striking out the claim without costs.
Legal principles established
#- A cause of action for unfair termination or wrongful dismissal accrues at the point of termination, and an internal appeal does not postpone accrual or create a fresh cause of action
- A time-barred dismissal claim may only be sustained beyond the limitation period where statutory, contractual or implied estoppel by the employer's conduct exists
Court orders
#- 1.Preliminary objection upheld
- 2.Memorandum of Claim struck out
- 3.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 limitation provision invoked by Respondents)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter O Magero v Board of Governors, St. Augustine Soysambu Secondary School & another [2017] KEELRC 1973 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1973/eng@2017-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.