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ELRCDismissedNot stated in judgment· [2018] KEELRC 1270 (KLR)

Benedicta Kinya Mutuamwari v Public Service Commission & another [2018] KEELRC 1270 (KLR)

Employment and Labour Relations Court
10 August 2018
815 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) dealt with two applications: the claimant's notice of motion dated 10 May 2017 seeking to restrain the respondent from evicting her from House No. LG 553A in Shauri Moyo Estate, and the respondent's preliminary objection arguing that the suit was time barred under Section 90 of the Employment Act, incompetent, and outside the court's jurisdiction. The court dealt with the preliminary objection first, applying the Owners of Motor Vessel 'Lillian S' principle that a court without jurisdiction must down its tools. The claimant argued that limitation ran from the dismissal of her appeal against termination on 20 February 2015; the respondent contended that the cause of action arose on her dismissal on 26 January 2012, so the three-year limitation period expired on 25 January 2015, before the suit was filed on 27 July 2015. Relying on Benjamin Ndiithi v Public Service Commission and Mwabolo v Kenya Commercial Bank, the court held that the cause of action accrues from the date of dismissal and not from the outcome of a review or appeal. The claimant's own memorandum of claim identified the termination on 26 January 2012 as the cause of action. Finding the suit time barred, the court held it lacked jurisdiction and dismissed the claim for want of jurisdiction and for being time barred. The restraining orders were consequently refused, and the court made no orders for costs.

Key legal issues

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01

When does the limitation period under Section 90 of the Employment Act begin to run where a dismissal is followed by an unsuccessful review or appeal?

Holding

The cause of action accrues on the date of dismissal (26 January 2012), not on the date of the outcome of the review or appeal; the suit filed on 27 July 2015 is therefore time barred.

Reasoning

The claimant pleaded in her memorandum of claim that the cause of action was the termination of employment on 26 January 2012. Applying the holding in Benjamin Ndiithi, which endorsed Mwabolo v Kenya Commercial Bank, accrual of the cause of action in employment claims takes effect from the date of termination as communicated, and seeking a review or appeal does not hold accrual in abeyance. The three-year period expired on 25 January 2015.

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02

What is the effect of a suit being time barred on the court's jurisdiction?

Holding

A time-barred suit is incompetent and the court has no jurisdiction to determine it; the court must down its tools.

Reasoning

The court invoked the Owners of Motor Vessel 'Lillian S' principle that where a court lacks jurisdiction it must down its tools, and Thuranira Karauri, that limitation goes to jurisdiction and a time-barred suit should be struck out with the plaintiff non-suited forever. The Supreme Court's Samuel Kamau Macharia decision on the source and limits of jurisdiction was also applied.

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Legal principles established

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  • In employment claims under Section 90 of the Employment Act, limitation runs from the date of dismissal, not from the determination of any appeal or review against the dismissal.
  • Limitation goes to the jurisdiction of the court; a time-barred suit is incompetent and should be struck out.

Court orders

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  1. 1.The claim is dismissed for want of jurisdiction and for being time barred
  2. 2.No orders for costs
Jurisdiction invoked
Section 90 of the Employment Act (limitation of employment claims)

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, "Benedicta Kinya Mutuamwari v Public Service Commission & another [2018] KEELRC 1270 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1270/eng@2018-08-10

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