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ELRCDismissedEmployment and Labour Relations Court Claim (Memorandum of Claim filed 30/10/2015)· [2019] KEELRC 322 (KLR)

David Gachathi Thuo v Postal Corporation of Kenya [2019] KEELRC 322 (KLR)

Employment and Labour Relations Court
28 October 2019
HWHellen Wasilwa
2,653 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a wrongful dismissal claim filed just weeks after the three-year legal deadline expired, without ever hearing the case on its merits.

What this practically means

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Executive summary

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The Claimant, a former Compliance Officer of the Postal Corporation of Kenya, sued for wrongful dismissal and non-payment of dues. He alleged he was arrested and charged with stealing in 2010 over alleged fraudulent Posta Pay transactions, suspended without pay in April 2010, summarily dismissed in August 2012 for negligence, and that his appeal was never heard despite his subsequent acquittal in October 2014. He sought declarations of violation of Articles 27, 28 and 29, general damages, reinstatement, and payment of salary, benefits and accrued leave exceeding Kshs. 4 million. The Respondent maintained that it conducted investigations, followed disciplinary procedure, and that the Claimant was afforded a fair hearing, including a hearing invitation he declined to attend. Neither side's submissions on the merits were ultimately determinative. The court took up the limitation issue under Section 90 of the Employment Act, observing that the cause of action arose on dismissal, not upon communication of the appeal outcome in 2015. Although a preliminary objection on limitation had earlier been dismissed, the judge held that ruling to be a misdirection and reviewed it. The dismissal letter dated 31/8/2012 was served on 14/9/2012, so the three-year period expired on 14/9/2015, while the claim was filed on 30/10/2015 - out of time. The court therefore dismissed the entire claim without considering the merits, with no order as to costs.

Key legal issues

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01

Limitation under Section 90 of the Employment Act

Holding

The claim was filed after the three-year limitation period expired and is time barred

Reasoning

The court held that the cause of action arose on dismissal, not on the communication of the appeal outcome in 2015. The dismissal letter dated 31/8/2012 was received on 14/9/2012, so three years lapsed on 14/9/2015. The memorandum of claim was filed on 30/10/2015, outside the period, notwithstanding that a preliminary objection on the point had earlier been dismissed.

p. 4
02

Merits of the unfair dismissal claim

Holding

Not determined

Reasoning

Because the claim was found to be time barred, the court expressly declined to adjudicate the fairness of the dismissal, the alleged constitutional violations, or the prayers for reinstatement and accrued dues, leaving those questions unanswered.

p. 4

Legal principles established

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  • A claim arising out of a contract of service must be filed within three years of the act complained of, and where the dismissal letter is served on a later date, time runs from service
  • Where a claim is time barred under Section 90 of the Employment Act, the court need not consider the merits

Court orders

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  1. 1.The entire claim is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSections 41, 43, 44(4)(c), 45(2), 90
  • Limitation of Actions ActSection 4(1)
  • Employment & Labour Relations ActSection 12(3)(viii)
  • Constitution of KenyaArticles 27, 28, 29
  • Posta Code Regulationsnot specified

Cases cited (8)

  • Onyango Oloo v Attorney General
    (1986-1989) EA 456
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • Alex Semutwa v Kenya Seed Company Limited
    [2014] eKLR
  • Walter Ogal Anure -v- Teachers Service Commission
    [2013] eKLR
  • Robert Mofat Odhiambo -v- Harambee Sacco Limited
    [2018] eKLR
  • Nampak Corrugated Wadeville v Khoza
  • Iyego Farmers Co-operative Sacco v Kenya Union of Commercial Food & Allied Workers
  • EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae)
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Act (jurisdiction of the ELRC over employment disputes)

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, "David Gachathi Thuo v Postal Corporation of Kenya [2019] KEELRC 322 (KLR)", Case Analysis (2019). Employment and Labour Relations Court Claim (Memorandum of Claim filed 30/10/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/322/eng@2019-10-28

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