Benedicta Kinya Mutuamwari v Public Service Commission & another [2018] KEELRC 1270 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#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?
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.
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.
What is the effect of a suit being time barred on the court's jurisdiction?
A time-barred suit is incompetent and the court has no jurisdiction to determine it; the court must down its tools.
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.
Legal principles established
#- 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
#- 1.The claim is dismissed for want of jurisdiction and for being time barred
- 2.No orders for costs
- Jurisdiction invoked
- Section 90 of the Employment Act (limitation of employment claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.