Aggrey Outa Ong’ang’o v Nairobi County Government [2019] KEELRC 896 (KLR)
The bottom line
#Kenyan employees who appeal dismissal have three years to sue from the date their appeal is decided, not from the dismissal letter.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit filed on 21.2.2018 was time barred under section 90 of the Employment Act
The suit was not time barred; the cause of action accrued on both 5.7.2012 (communication of dismissal) and 31.3.2015 (dismissal of the internal appeal), and the suit filed 2 years 11 months after the appeal was dismissed was within the three-year limitation period.
The court adopted the definition of cause of action in Letang v Cooper and Drummond Jackson as adopted by Waki JA in Rift Valley Railways, holding that limitation runs from receipt of the dismissal letter, but that where an employee exercises a contractual right of appeal, the disciplinary process is extended and the cause of action is postponed to the end of the appeal. The claimant appealed within the prescribed 42 days and the appeal was dismissed on 31.3.2015; filing suit on 21.2.2018 was within three years of that date.
Whether the internal appeal or review process stops or defers the running of the limitation period
An employee who appeals has the right not to sue until the appeal is heard and dismissed; the appeal postpones accrual of the cause of action, departing from Ongaya J's contrary holding in Samuel Thuku Mwangi.
The court reasoned that an appeal can yield either confirmation or setting aside of the dismissal, so the employee is entitled to await the outcome before coming to court, that being when 'his hope of regaining his job back is dashed.' The court expressly disagreed with the decision in Samuel Thuku Mwangi insofar as it held that the right of appeal does not affect limitation.
Legal principles established
#- For suits for unfair or unlawful termination of employment, limitation runs from the date the employee receives information of termination, or where the contract allows a right of appeal, from the date the appeal is determined.
- A disciplinary hearing is deemed to include the appeal proceedings, so an employee who appeals postpones the accrual of the cause of action until the appeal is concluded.
Court orders
#- 1.The Notice of Preliminary Objection is dismissed with costs
- Jurisdiction invoked
- Employment Act, section 90 (limitation of actions in employment claims); Employment and Labour Relations Court jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aggrey Outa Ong’ang’o v Nairobi County Government [2019] KEELRC 896 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/896/eng@2019-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.