John Mureithi Kiagayu v Attorney General [2018] KEELRC 1766 (KLR)
The bottom line
#The Employment Court dismissed a claim for a 1987 dismissal as too late, confirming that limitation deadlines cannot be waived, even by another court's direction.
What this practically means
#Executive summary
#Key legal issues
#Whether the employment claim filed in 2015 for a termination effected on 10 July 1987 was statute-barred
Yes - the six-year limitation period under section 4(1) of the Limitation of Actions Act expired on 9 July 1993, so the cause of action on the employment contract was caught by the law of limitation
The Claimant pleaded that his employment was terminated on 10 July 1987. The applicable limitation law for contractual disputes at the material time was section 4(1) of the Limitation of Actions Act, prescribing six years. Action ought therefore to have been commenced on or before 9 July 1993. The Memorandum of Claim filed on 22 October 2015 was far out of time, and the High Court's earlier direction to approach the proper Court did not oust the statutory limitation provisions.
Whether limitation is a technicality curable under Article 159 of the Constitution
No - limitation goes to jurisdiction and cannot be salvaged by the constitutional command that justice be administered without undue regard to procedural technicalities
The Claimant argued that limitation was a technical question that Article 159 could cure. The Court rejected this, holding that limitation is not merely technical but goes to the jurisdiction of the Court. Where a cause is time-barred, the Court lacks jurisdiction to entertain it regardless of the overriding objective, and the High Court's referral direction could not override express statutory limitation provisions.
Whether the Claimant could claim compensation for unfair termination for a 1987 dismissal
It is doubtful - unfair termination as a cause of action and the remedy of compensation were introduced by the Employment Act, 2007 and could not avail the Claimant
The Court observed, before concluding, that the cause of action of unfair termination of employment and the attendant remedy of compensation were introduced into Kenyan law by the Employment Act, 2007. Since the dismissal occurred in 1987, before the Act came into force, the Claimant could not avail himself of that head of claim and relief.
Legal principles established
#- Limitation goes to jurisdiction and cannot be cured by invocation of Article 159 of the Constitution
- A court's direction to approach the proper forum does not displace express statutory limitation periods
- The cause of action of unfair termination of employment and the remedy of compensation were introduced by the Employment Act, 2007 and cannot apply retroactively to pre-2007 dismissals
Court orders
#- 1.The preliminary objection on limitation is upheld
- 2.The Cause is dismissed with no order as to costs
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over employment disputes, following referral by the High Court after Petition No. 141 of 2011; objection founded on section 90 of the Employment Act, 2007 and the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Mureithi Kiagayu v Attorney General [2018] KEELRC 1766 (KLR)", Case Analysis (2018). Memorandum of Claim filed 22 October 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1766/eng@2018-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.