George Owino v Postal Corporation of Kenya (Cause 2365 of 2017) (Employment and Labour) [2018] KEELRC 473 (KLR)

The Court held that the letter dated 2 February 2011 informed the Claimant of his dismissal, so the cause of action for unlawful termination accrued on that date. Proceedings lodged on 29 November 2017 were about six years later, far outside the three-year limitation period prescribed by section 90 of the Employment Act, 2007. The preliminary objection on limitation was therefore upheld.

The Claimant argued the cause of action was a continuing injury accruing on his acquittal in February 2016. The Court rejected this, holding termination is complete once the employee is informed. Further, even on the continuing injury theory, section 90 requires institution within 12 months of cessation; the acquittal was on 2 February 2016, so suit should have been filed by 1 February 2017, yet it was filed on 29 November 2017.

The Claimant contended that limitation was a technicality curable by Articles 50 and 159 of the Constitution. Citing Divecon v Samani, the Court held that limitation is not merely procedural but goes to jurisdiction, and therefore the constitutional provisions relied upon could not rescue a statute-barred claim.

The Claimant suggested the Respondent was estopped from pleading limitation because of the suspension letter, purportedly under section 39 of the Limitation of Actions Act. The Court found no such undertaking in the suspension letter that the Respondent would await the outcome of the criminal trial before taking disciplinary action, and rejected the estoppel argument.