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ELRCStruck OutNot stated in judgment· [2019] KEELRC 913 (KLR)

Peter Hilary Odhiambo v Attorney General on behalf of the Ministry of Interior and Coordination of National Government [2019] KEELRC 913 (KLR)

Employment and Labour Relations Court
30 August 2019
BOByram Ongaya
771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court struck out a Kshs.8 million unfair termination claim because it was filed more than three years after dismissal, Kenya's statutory deadline.

What this practically means

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Executive summary

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The claimant, employed on 02.01.2008 as District Supplies and Procurement Assistant for the Western Kenya Community Driven Development & Flood Mitigation Programme at a monthly pay of Kshs.69,667 plus Kshs.2,000 airtime, was suspended by letter dated 09.10.2009 following audit findings and terminated by letter dated 28.05.2010 with effect from the suspension date. Acting initially in person, he filed a memorandum of claim on 17.12.2014 alleging unfair termination and claiming Kshs.8,134,475.60 under several headings, interest at 20% and a certificate of service. The respondent, through Litigation Counsel L. Odhiambo, objected that the suit was time barred under section 90 of the Employment Act, 2007, the claim having been filed more than three years after termination. The claimant argued that he received the termination letter on 29.06.2010, filed an administrative appeal the same day, and that the Permanent Secretary corresponded with the World Bank in December 2010; the appeal was never decided, prompting him to move the Court. The court, bound by the Court of Appeal decision in Attorney General & Another v Andrew Maina Githinji & Another [2016]eKLR, held there was no doubt the suit was filed outside the three-year limitation period. It observed the claimant never sought orders compelling determination of the administrative appeal, and that specific performance or judicial review might be available. Noting the preliminary objection was raised belatedly and not categorically pleaded, the court struck out the suit as time barred and ordered each party to bear own costs.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

The suit filed on 17.12.2014 was out of time, the cause of action having arisen with the termination effective 09.10.2009; the suit was struck out

Reasoning

The court found no dispute that termination took effect on 09.10.2009 and the claim was lodged on 17.12.2014, well beyond 3 years. Following the Court of Appeal in Attorney General & Another v Andrew Maina Githinji, the limitation period was surpassed. The claimant's administrative appeal had not been raised as a pleaded basis to suspend time, and no orders had been sought to compel its determination.

p. 2
02

Effect of a pending administrative appeal on limitation

Holding

The proper remedy for the agreed administrative appeal procedure was specific performance of the contractual provision or other appropriate remedy such as judicial review, not pleaded or sought in this suit

Reasoning

The court considered that the parties had agreed on an administrative appeal procedure. The claimant did not seek orders that the appeal be determined, so that circumstance did not arrest the running of time. The court noted the objection was raised belatedly and not categorically pleaded, which informed the costs order.

p. 2

Legal principles established

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  • A cause of action in employment termination accrues when the employee is dismissed and knows the facts; filing beyond the 3-year statutory limitation renders the claim time barred

Court orders

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  1. 1.The suit is struck out for being time barred
  2. 2.Each party shall bear own costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (limitation under section 90 invoked)

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, "Peter Hilary Odhiambo v Attorney General on behalf of the Ministry of Interior and Coordination of National Government [2019] KEELRC 913 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/913/eng@2019-08-30

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