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ELRCDismissed· [2018] KEELRC 1972 (KLR)

Loice Mutai v Kenya Renenue Authority [2018] KEELRC 1972 (KLR)

Employment and Labour Relations Court
27 April 2018
HWHellen Wasilwa
759 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a suspended employee is still employed, so the three-year limitation deadline for unfair dismissal claims does not block her case.

What this practically means

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Executive summary

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The Respondent, Kenya Revenue Authority, raised a preliminary objection dated 18th December 2017 against a Petition by Loice Mutai challenging her suspension as a gross violation of her constitutional rights. The Respondent argued that the Petition was time barred under Section 90 of the Employment Act, stripping the Court of jurisdiction, and that it was an abuse of process because the Claimant had withdrawn Nairobi ELRC No. 725 of 2017, which had sought similar orders, before hearing; counsel also relied on a ruling by Ndolo J of 13th October 2017 that an employee seeking reinstatement must go through a full trial, and on authorities holding employment matters to be private law outside Article 47. The Claimant opposed, contending that Section 90 did not apply because she remained on suspension rather than dismissed, that the Court had jurisdiction, and that the application was not a true preliminary objection under the Mukisa Biscuit principle. Wasilwa J held that Section 90 addresses dismissal or termination; since the Petitioner was still on suspension and thus still an employee, the limitation provision did not apply. Finding no merit in the objection, the Court dismissed it with costs to the Petitioner/Respondent on 27th April 2018, allowing the Petition to proceed to full hearing.

Key legal issues

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01

Whether Section 90 of the Employment Act bars a petition by an employee on suspension

Holding

The limitation period in Section 90 applies only to claims arising from dismissal or termination; an employee still on suspension remains in employment, so the section does not apply and the Court has jurisdiction

Reasoning

The Court examined the text of Section 90, which restricts civil actions arising out of the Employment Act or a contract of service to three years. It found the section speaks to dismissal or termination. On the pleadings the Petitioner sought a declaration that her suspension violated her constitutional rights, and there was no indication of dismissal or termination. As she remained an employee, the limitation bar was inapplicable and the preliminary objection lacked merit.

p. 2
02

Whether the objection was a true preliminary objection in the Mukisa Biscuit sense

Holding

The Petitioner argued the application was not a proper preliminary objection as the Mukisa Biscuit principle had not been established, but the Court did not resolve this point, deciding instead on the limitation ground

Reasoning

The Petitioner submitted that the application was not in the nature of a preliminary objection as the principle in the Mukisa Biscuit case had not been established. The Court recorded this submission but determined the matter on the Section 90 limitation issue, finding the objection unmerited without making an express finding on whether it was properly framed as a preliminary objection.

p. 2

Legal principles established

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  • Section 90 of the Employment Act, which imposes a three-year limitation period on actions arising from the Act or a contract of service, does not apply to a claimant who remains an employee on suspension rather than having been dismissed or terminated

Court orders

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  1. 1.The Preliminary Objection dated 18th December 2017 is dismissed
  2. 2.Costs of the Preliminary Objection are awarded to the Petitioner/Respondent

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)
  • Constitution of Kenya, 2010Article 47

Cases cited (5)

  • Loice Mutai vs Kenya Revenue Authority
    (2017) eKLR
  • Stephen Karithi Gakula vs Teachers Service Commission
    (2017) eKLR
  • Josephat Ndirangu vs Henkel Chemicals (EA) Limited
    (2013) eKLR
  • Julius Situma vs Teachers Service Commission
    (2015) eKLR
  • Mukisa Biscuit case
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court asserted by the Respondent to be excluded by Section 90 of the Employment Act; the Court held jurisdiction exists

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, "Loice Mutai v Kenya Renenue Authority [2018] KEELRC 1972 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1972/eng@2018-04-27

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