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ELRCOtherNot stated in excerpt· [2018] KEELRC 2097 (KLR)

Justine Nguma Kitonyo v Teachers Service Commission [2018] KEELRC 2097 (KLR)

Employment and Labour Relations Court
12 April 2018
1,777 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a dismissal letter doesn't start the three-year limitation clock until it's actually served on the employee.

What this practically means

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Executive summary

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The Claimant, a teacher posted to a Kilifi primary school in 2007, was arrested and charged with the murder of a pupil, convicted and sentenced to death on 3.4.2013, and acquitted by the Court of Appeal on 11.11.2016. On visiting the Respondent's office in February 2017 he learnt he had been dismissed by a letter dated 30.8.2011 which was never served on him. He sued on 7.3.2017 seeking terminal dues and compensation for unfair termination totalling Kshs.6,746,402 plus costs and interest. The Respondent filed no defence but raised a preliminary objection that the suit was time barred under section 90 of the Employment Act, relying on six precedents and contending that limitation extinguished the Court's jurisdiction. The Claimant countered that the objection was incompetent because limitation had not been pleaded in a defence, and that time ran only from February 2017 when he learnt of the dismissal. The court framed four questions around service of the dismissal letter, notification, when termination took effect, and whether filing violated section 90. It held that a termination by letter is ineffective until served, that proof of service is a factual question requiring evidence so the objection fails the Mukisa Biscuits threshold, and that limitation ought first to be pleaded in a defence, following Okemwa, Emojong and Achola v Hongo. The preliminary objection was dismissed with costs, the Respondent given 21 days to file a defence, and the matter set down for full hearing.

Key legal issues

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01

Whether the suit is statute barred under section 90 of the Employment Act

Holding

The preliminary objection fails; limitation cannot be determined on a preliminary objection where service of the dismissal letter is contested and requires evidence

Reasoning

The Respondent filed no defence denying the Claimant's averment that he was never served with the dismissal letter and only learnt of the dismissal in February 2017. The court held termination by letter takes effect only upon effective service, so time under section 90 could not be shown on the papers to have run from 30.8.2011. Proof of service is a factual question requiring evidence, defeating the preliminary objection.

p. 2
02

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

It did not, because it rests on a question of fact requiring evidence

Reasoning

The court applied the Mukisa Biscuits test that a preliminary objection must be a pure point of law not requiring production of evidence. Since the limitation defence depends on proving service of the dismissal letter dated 30.8.2011, it cannot be resolved as a pure point of law.

p. 2
03

Whether limitation could be raised without being pleaded in a defence

Holding

No; it should have been pleaded in a response before being raised as a preliminary objection

Reasoning

Relying on Fredrick Idiama Emojong and the Court of Appeal decision in Achola v Hongo, the court held that a defence opens the court's eyes to contested facts, and a party who fails to plead limitation in a defence is not entitled to base a preliminary objection on that issue.

p. 3

Legal principles established

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  • A termination by letter is not effective until the letter is effectively served on the employee, for purposes of computing the limitation period under section 90 of the Employment Act
  • A preliminary objection on limitation that depends on proof of service of a dismissal letter is not a pure point of law and fails the Mukisa Biscuits threshold
  • Limitation should be pleaded in a defence before it may be raised as a preliminary objection

Court orders

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  1. 1.The Preliminary Objection dated 15.5.2017 is dismissed with costs
  2. 2.The Respondent is at liberty to file and serve defence within 21 days from the date hereof, after which the matter shall go to full hearing

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Actsection 4(1)

Cases cited (4)

  • Fredrick Idiama Emojong Vs Seferio Mangeni Manyuru & 2 others
    [2017] eKLR
  • Achola & Another Vs Hongo & Another
    [2004] eKLR 462
  • Ezekiel Nyangoya Okemwa Vs Kenya Marine & Fisheries Research Institute
    [2016] eKLR
  • Mukisa Biscuits Manufacturing Limited Vs West End Distributors Limited
    [1969] EA 696
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under section 90 of the Employment Act in issue; suit under the Employment Act

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, "Justine Nguma Kitonyo v Teachers Service Commission [2018] KEELRC 2097 (KLR)", Case Analysis (2018). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2097/eng@2018-03-12

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