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ELRCDismissedCause No. (Memorandum of Claim filed 9.5.2014) – Industrial Court· [2018] KEELRC 237 (KLR)

James Otieno Opondo v Inspector General of National Police Service & 2 others [2018] KEELRC 237 (KLR)

Industrial Court (Employment and Labour Relations Court)
20 December 2018
HWHellen Wasilwa
2,026 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan police officer's unfair dismissal claim failed because he filed it more than three years after his dismissal, as the Employment Act requires.

What this practically means

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Executive summary

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The Claimant, a former Police Constable attached to Garissa Police Station, sued the Inspector General of Police and the Attorney General seeking a declaration that his dismissal on 26 August 2010, following the escape of a prisoner while in the custody of another officer, was wrongful, unfair and unlawful. He sought pecuniary loss, reinstatement, and general and exemplary damages. The Respondents denied liability, maintained the dismissal followed due process, and raised preliminary issues of res judicata and statutory time bar, invoking the prior judicial review proceedings in JR Case No. 147 of 2011. The court found that the JR decision, which had remitted the Claimant's appeal for fresh consideration, did not render the present claim res judicata, since it only dealt with the legality of the Respondents' decision, not a claim for damages. The court also noted that the appeal had been reconsidered without giving the Claimant a hearing, contrary to natural justice. However, applying Section 90 of the Employment Act, which requires such claims to be filed within three years of dismissal, the court held that the claim filed on 9 May 2014 was out of time. Consequently, the court held it lacked jurisdiction and dismissed the claim on 20 December 2018, with no express costs order stated in the judgment.

Key legal issues

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01

Res judicata

Holding

The claim is not res judicata; the JR proceedings only dealt with the legality of the decision and the reconsideration of the appeal

Reasoning

The court found that the High Court in JR Case No. 147 of 2011 only dealt with the legality of the Respondents' decision and ordered the appeal be considered afresh. It did not adjudicate the claim for damages for unfair dismissal, so the present claim was not barred.

p. 3
02

Limitation of actions under Section 90 of the Employment Act

Holding

The claim, filed on 9.5.2014, was outside the three-year period running from the dismissal on 26.8.2010 and therefore time barred

Reasoning

The Claimant was dismissed on 26.8.2010 and filed the JR application in 2011 but only instituted this claim on 9.5.2014, beyond the three-year window under Section 90. The court therefore held it lacked jurisdiction to entertain the claim.

p. 3
03

Fair hearing and natural justice in disciplinary process

Holding

The Respondent's reconsideration of the appeal without hearing the Claimant breached the principles of natural justice

Reasoning

Although the court observed that the appeal was reconsidered without affording the Claimant a hearing, it did not proceed to grant remedies because the claim was barred by limitation. This finding was obiter to the ultimate dismissal.

p. 3

Legal principles established

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  • A claim for unfair termination must be filed within three years of dismissal under Section 90 of the Employment Act, failing which the court has no jurisdiction
  • A judicial review decision quashing a disciplinary outcome and remitting an appeal for fresh consideration does not bar a subsequent claim for unfair dismissal damages
  • Reconsidering an employee's appeal without affording him a hearing offends the rules of natural justice

Court orders

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  1. 1.The claim is dismissed for want of jurisdiction, being time barred

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSections 35(1), 41
  • Employment Court Act 2011Section 12(4)
  • Police Regulation OrdersRegulation 3 sub-regulation 16
  • Constitution of Kenya, 2010Articles 41, 47, 50

Cases cited (6)

  • Kenfreight (E.A.) Limited
  • George Onyango Akuti vs. Security Services Kenya Limited
    (2013) eKLR
  • Shankar Saklani vs. DHL Global Forwarding (K) Limited
    [2012] eKLR
  • Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & Another
    [2016] eKLR
  • Republic vs. Rosemary Wairimu Munene ex parte Applicant vs. Ihururu Dairy Farmers Co-operative Sacco Limited
  • Republic vs. The Commissioner of Police ex parte James Otieno Opondo
    JR Case No. 147 of 2011
Jurisdiction invoked
Article 162(2) of the Constitution / Industrial Court Act 2011 (employment and labour relations jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Otieno Opondo v Inspector General of National Police Service & 2 others [2018] KEELRC 237 (KLR)", Case Analysis (2018). Cause No. (Memorandum of Claim filed 9.5.2014) – Industrial Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/237/eng@2018-12-20

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