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ELRCDismissedNot stated in judgment· [2018] KEELRC 743 (KLR)

Kithure M’mwenda Nyaga v Teacher Service Commission [2018] KEELRC 743 (KLR)

Employment and Labour Relations Court
2 November 2018
OMOnesmus N. Makau
1,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan teacher's unfair dismissal claim failed because he filed suit years too late, and the court had no power to hear it anyway.

What this practically means

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Executive summary

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The claimant, a teacher employed by the respondent on 7.5.1990, was interdicted in January 2004 for alleged insubordination after refusing to invigilate national examinations at Chogoria Boys High School in October 2003. Following a disciplinary hearing on 6.5.2004, he was dismissed for insubordination. His appeal was unsuccessful and a review sought through his union, KNUT, was declined on 8.10.2008. He sued on 26.5.2014 seeking a declaration that his dismissal was unfair, notice pay, half-salary arrears for five months in 2004, compensation for unfair dismissal, loss of future earnings to retirement age, pension dues, general and exemplary damages, a certificate of service, costs and interest. The respondent admitted the dismissal but justified it as lawful, following due process. The court identified three issues: limitation, unfairness of dismissal, and reliefs. On limitation, the court held that under section 4(1)(a) of the Limitation of Actions Act, a contract claim accruing on 6.5.2004 lapsed on 6.5.2010; alternatively, under section 90 of the Employment Act 2007 applicable from the review outcome of 8.10.2008, the three-year period lapsed on 8.10.2011. Either way the suit, filed 26.5.2014, was over two years out of time. Noting that the claimant had mischievously omitted the date of accrual and the respondent had failed to plead limitation or raise a preliminary objection, the court nonetheless held limitation goes to jurisdiction, downed its tools, and dismissed the suit with each party bearing their own costs.

Key legal issues

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01

Whether the suit is statute barred

Holding

The suit was filed outside the limitation period whether computed under section 4(1)(a) of the Limitation of Actions Act (6 years from 6.5.2004) or section 90 of the Employment Act 2007 (3 years from 8.10.2008), by over 2 years, and is therefore statute barred.

Reasoning

The claimant was dismissed on 6.5.2004 and the suit was filed on 26.5.2014. Under the Limitation of Actions Act, section 4(1)(a), a contract claim must be brought within six years, lapsing on 6.5.2010. Even dating accrual from the conclusion of the internal review on 8.10.2008, the Employment Act 2007 imposed a three-year limitation, lapsing on 8.10.2011. Either way the claim was over two years out of time, ousting the court's jurisdiction.

p. 2
02

Whether the failure of the parties to plead limitation affects the court's jurisdiction

Holding

Limitation goes to jurisdiction; the court must down its tools even though the claimant mischievously omitted the date of accrual and the respondent failed to plead limitation or raise it by preliminary objection.

Reasoning

The court observed that the claim was 'mischievously pleaded' so as to omit the date the cause of action arose, and that the respondent, who had all the facts, neither pleaded the limitation defence nor raised it by preliminary objection. Nevertheless, because limitation goes to the court's mandate to entertain a dispute, the judge could not entertain the suit and was obliged to down his tools.

p. 2

Legal principles established

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  • A suit filed outside the statutory limitation period is statute barred and the court is barred from entertaining it
  • Actions founded on contract may not be brought after the end of six years from the date the cause of action accrued
  • The Employment Act 2007 reduced the limitation period for employment claims to 3 years under section 90

Court orders

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  1. 1.The suit is dismissed for want of jurisdiction as it is statute barred
  2. 2.Each party shall bear his or her own costs

Authorities

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Legislation

  • Employment Act 2007section 90
  • Limitation of Actions Actsection 4(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes; jurisdiction ousted by limitation under the Limitation of Actions Act and Employment Act 2007

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, "Kithure M’mwenda Nyaga v Teacher Service Commission [2018] KEELRC 743 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/743/eng@2018-11-02

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