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ELRCDismissedNot stated in judgment· [2019] KEELRC 896 (KLR)

Aggrey Outa Ong’ang’o v Nairobi County Government [2019] KEELRC 896 (KLR)

Employment and Labour Relations Court
20 September 2019
1,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant was suspended on 2.3.2011 for alleged forgery of an academic certificate. His employer's staff and finance committees recommended his dismissal without hearing him, and dismissal was conveyed by letter dated 5.7.2012 with a right of appeal to the Public Service Commission within 42 days. He appealed on 24.7.2012; while the appeal was pending he was acquitted in the criminal forgery case. The appeal was dismissed on 31.3.2015. His request for review went unanswered, and he sued on 21.2.2018 seeking a declaration that his dismissal was unfair, compensatory damages, a certificate of service and costs. The respondent filed a preliminary objection arguing the suit was time barred under section 90 of the Employment Act, which requires employment claims to be filed within three years of accrual of the cause of action. The respondent relied on authorities holding that the cause of action accrues on receipt of the termination letter and that internal appeal rights do not stop time. The claimant countered that time ran from dismissal of his appeal on 31.3.2015, making the suit two years and eleven months old. The court, Onesmus N. Makau J, applied the Rift Valley Railways decision and the English definitions of cause of action in Letang v Cooper and Drummond Jackson, holding that a disciplinary hearing includes the appeal proceedings, so an employee who appeals postpones accrual of the cause of action until the appeal is determined. The court expressly disagreed with Ongaya J's contrary holding in Samuel Thuku Mwangi. The cause of action arose on both 5.7.2012 and 31.3.2015; the suit was within time. The preliminary objection was dismissed with costs, and the main suit proceeds to hearing.

Key legal issues

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01

Whether the suit filed on 21.2.2018 was time barred under section 90 of the Employment Act

Holding

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.

Reasoning

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.

p. 2
02

Whether the internal appeal or review process stops or defers the running of the limitation period

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Actsection 4

Cases cited (7)

  • Maria Machocho V Total (K)
    [2013] eKLR
  • Joyce Wanjiku Muchiko & Another V Telkom (K) Limited
    [2012] eKLR
  • Rift Valley Railways (Kenya) Ltd V Hawkins Wanguza Musonye and Another
    [2016] eKLR
  • Attorney General & Another Vs Andrew Maina Githinji & Another
    [2016] eKLR
  • Samuel Thuku Mwangi V County Government of Laikipia & 3 others
    [2016] eKLR
  • Drummond Jackson Vs Britam Medical Association
    [1970] 2 WLR 688
  • Letang Vs Cooper
    [1964] 2 AII ER 929
Jurisdiction invoked
Employment Act, section 90 (limitation of actions in employment claims); Employment and Labour Relations Court jurisdiction 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, "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.