Bernard Amoro Mutendi v Teachers Service Commission [2018] KEELRC 376 (KLR)
The bottom line
#A Kenyan teacher's case against the Teachers Service Commission was struck out because it was filed just 17 days past the three-year legal deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether the Public Authorities Limitation Act applies to the Teachers Service Commission
It does not; the Act covers only proceedings against the Government and local authorities, and the Teachers Service Commission is not covered.
The court agreed with the claimant that Section 2 of the Public Authorities Limitation Act defines proceedings as those against the Government or a local authority. No mention is made of the Teachers Service Commission or commissions generally. The Act's long title confirms it is limited to proceedings against the Government and local authorities. The court therefore excluded that statute from the analysis.
When did the cause of action accrue
The cause of action accrued on the date the impugned decision was communicated to the claimant, being 9th July 2013, not on the date of the original decision of 2nd April 2013 nor on the date the appeal was decided on 24th April 2015.
The court examined the memorandum of claim and found that the cause of action is the decision to warn and retire the claimant under the 10/50 year rule, which he contends was improper, illegal and wrongful. The court held that the cause of action arose on the date of communication of that decision, the letter dated 9th July 2013. The claimant's argument that the final decision was on 24th April 2015 upon appeal was not accepted as the accrual date.
Whether the claim is statute-barred
Yes. Filed on 26th July 2016, the claim was time-barred by 17 days under Section 90 of the Employment Act, and the court consequently lacked jurisdiction.
Applying Section 90 of the Employment Act, which requires a civil action arising out of a contract of service to be commenced within three years of the act complained of, the court computed from 9th July 2013 to filing on 26th July 2016 and found the claim 17 days out of time. Relying on Divecon v Samani, the court held that limitation goes to jurisdiction and that it must down its tools. The preliminary objection succeeded and the claim was struck out.
Legal principles established
#- A claim under Section 90 of the Employment Act must be filed within three years of the act complained of; a claim filed after the lapse of the limitation period deprives the court of jurisdiction.
- The cause of action in an employment claim arises on the date the decision impugned is communicated to the claimant.
- Jurisdiction is everything; without it a court cannot make one more step.
Court orders
#- 1.The preliminary objection by the respondent is upheld
- 2.The claim herein is struck out
- 3.There shall be no orders for costs
- Jurisdiction invoked
- Section 12(1)(a) of the Employment and Labour Relations Court Act pursuant to Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Amoro Mutendi v Teachers Service Commission [2018] KEELRC 376 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/376/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.