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ELRCDismissedCause No. 1437 of 2014· [2018] KEELRC 1077 (KLR)

James Andrew Wandera Kafwa v Public Service Commission & another [2018] KEELRC 1077 (KLR)

Employment and Labour Relations Court
26 September 2018
HWHellen S. Wasilwa
2,128 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former civil servant's 2014 lawsuit over a 1985 dismissal was thrown out because employment claims in Kenya must be filed within three years.

What this practically means

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Executive summary

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The Claimant, a person with disability employed by the Public Service Commission in 1977 as a Copy Typist II and deployed to the Nairobi Lands Registry, alleged that an inter-ministerial transfer to the Voice of Kenya in 1982 left him without a station; he was interdicted in October 1984 and later dismissed from service with effect from 28 October 1985. He claimed the two Respondent letters of 1986 and 1987 were contradictory, that he only learnt of the dismissal for gross misconduct in 2014, and sought damages for malice and bad faith plus salaries, allowances and benefits. The Respondents maintained he deserted duty, was interdicted, and was dismissed on recommendation of a Ministerial Human Resource Management Advisory Committee meeting of 9 July 1986; they said the claim was time barred. The court framed three issues: limitation, lawfulness of termination, and remedies. It held the claim time barred: even taking the latest accrual date, the Claimant's appeal was dismissed on 9 March 2000 when he was advised to seek redress in court, and he filed suit only in 2014. Following the Court of Appeal in Kenya Airports Authority vs Kisongochi, the court held it has no power to extend time. The court rejected the argument that constitutional rights claims carry no limitation, holding this was a pure employment claim and even petitions must be filed within a reasonable time. The claim was dismissed with no order of costs.

Key legal issues

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01

Whether the claim was time barred

Holding

The claim was time barred; the cause of action accrued on dismissal in 1985/1986 and at latest on the dismissal of the appeal on 9 March 2000, so the claim filed in 2014 was out of time.

Reasoning

The court found the Claimant was dismissed with effect from 28 October 1985 but noted inconsistencies, including payment of salary up to December 1985 and a committee meeting in July 1986 recommending dismissal. Even taking the latest date, the appeal was dismissed on 9 March 2000, when the Claimant was advised to seek redress in court. He filed suit in 2014, well beyond the six-year limitation period, and the court lacked power to extend time.

p. 4
02

Whether constitutional rights arguments defeat limitation

Holding

Rejected; the claim was a pure employment claim, not a constitutional petition, and even constitutional petitions must be filed within a reasonable time.

Reasoning

The Claimant argued that suits to enforce constitutional rights have no limitation period, relying on Kiluwa Limited. The court accepted that rights issues may have no limit of time but held that the suit before it was a pure employment claim, not a constitutional petition, and in any event even constitutional petitions must be filed within a reasonable time. The claim therefore fell to be dismissed on limitation grounds without considering the other issues.

p. 4

Legal principles established

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  • This Court has no power to extend time within which a claim should be filed under Section 4(1) of the Limitation of Actions Act
  • A purely employment claim is subject to limitation even if rights issues generally may have no limitation period

Court orders

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  1. 1.Dismissal of the claim as time barred
  2. 2.No order of costs

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Pension ActSection 6
  • Persons with Disabilities Act No. 14 of 2013

Cases cited (4)

  • Kiluwa Limited & another Vs Commissioner of Lands & 3 others
    [2015] EKL
  • Patrick Njuguna Kariuki Vs Del Monte Kenya Limited
  • Divecon vs Samani
    (1995-1998) 1 EA 48
  • Kenya Airports Authority vs Kisongochi
    Civil Appeal No. 6 of 2015 (Kisumu)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes (Employment Act, 2007 referenced)

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 Andrew Wandera Kafwa v Public Service Commission & another [2018] KEELRC 1077 (KLR)", Case Analysis (2018). Cause No. 1437 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1077/eng@2018-09-26

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