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ELRCDismissedPetition dated 21st September, 2018 (Employment and Labour Relations Court, Nakuru)· [2019] KEELRC 1702 (KLR)

Peter Ndegwa Nderitu v Teachers Service Commission [2019] KEELRC 1702 (KLR)

Employment and Labour Relations Court
29 April 2019
MMM. Mbaru
1,644 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a teacher's petition because employment claims must be filed within three years of dismissal, no matter how they are framed.

What this practically means

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Executive summary

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The respondent filed a preliminary objection on 4th March 2019 contending that the petitioner's suit dated 21st September 2018 was statute-barred under section 90 of the Employment Act, 2007, which requires employment claims to be filed within three years. The petitioner had been dismissed on 18th October 2012 following allegations of misconduct at Matura Secondary School and filed a constitutional petition alleging violations of Articles 25, 27, 28, 41, 47 and 50, seeking quashing of the disciplinary proceedings, reinstatement, and payment of salary and allowances. The petitioner argued that the time bar did not apply to constitutional petitions, relying on John Wairimu Mathenge v Attorney General. The court framed two issues: whether section 90 applied and whether time bar applies to employment-related constitutional petitions. Applying Court of Appeal authority, it held that time runs from communication of dismissal and that section 90 is mandatory with no power to extend time. It further held that the remedies sought were statutory employment remedies available under section 49 of the Employment Act and section 12(3) of the ELRC Act, and that framing an employment claim as a constitutional petition cannot circumvent the statutory limitation. Citing the Karume principle via Maurice Adongo Anyango, the court held that prescribed procedures must be strictly followed and that allowing litigants to shuffle between forums would cause jurisdictional confusion. The preliminary objection was allowed and the petition dismissed with costs to the respondent.

Key legal issues

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01

Applicability of section 90 of the Employment Act, 2007 limitation period

Holding

Section 90 applies; the claimant was dismissed on 18th October 2012 and sued on 21st September 2018, far outside the three-year limitation period

Reasoning

The court found it common cause that dismissal occurred on 18th October 2012 and the petition was filed on 21st September 2018. Relying on Court of Appeal authority, time begins to run when the letter of dismissal is issued. Section 90 is mandatory and no power exists to extend time.

p. 1
02

Whether a constitutional petition can bypass the statutory time bar

Holding

No. Where the remedies sought are statutory employment remedies, a petition cannot cure the time bar

Reasoning

The court held that however the petition is framed, the remedies of reinstatement and salary are available only under section 49 of the Employment Act and section 12(3) of the ELRC Act. Allowing litigants to shuffle between procedures would cause jurisdictional rivalry and confusion, and constitutional framing cannot defeat express limitation provisions.

p. 2
03

Jurisdiction where a claim is time-barred

Holding

The court has no jurisdiction to hear a time-barred employment claim

Reasoning

Since the claim was filed outside section 90 and there is no power to extend time, the court lacks jurisdiction to entertain the matter. The preliminary objection was therefore upheld and the petition dismissed with costs to the respondent.

p. 1

Legal principles established

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  • All employment and labour relations claims must be filed within three years under section 90 of the Employment Act, 2007, and the court has no power to extend time
  • The cause of action in employment accrues when termination is communicated to the employee
  • Framing an employment claim as a constitutional petition does not cure a statutory time bar
  • Where a specific procedure for redress is prescribed by statute, it must be strictly followed

Court orders

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  1. 1.The respondent's preliminary objection dated 4th March, 2019 is allowed
  2. 2.The petition and the remedies sought are dismissed
  3. 3.Costs to the respondent

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 49
  • Employment and Labour Relations Court Actsection 12(3)
  • Employment and Labour Relations Court (Procedure) RulesRule 7
  • Limitation of Actions Actsection 4(1)
  • Constitution of Kenya, 2010Articles 25, 27, 28, 41, 47, 50 and 162(2)

Cases cited (11)

  • Attorney General & another versus Andrew Maina Githinji & another
    Nyeri Civil Appeal No.21 of 2015
  • Benjamin Wachira Ndiithi versus PSC
  • Kenya Electrical Trades & Allied Workers Union versus Kenya Power & Lighting Company Ltd
    [2015] eKLR
  • David Ngugi Waweru versus Attorney General & Another
    [2017] eKLR
  • John Wairimu Mathenge (petitioner on behalf of the Estate of Adam Mathenge Wangombe) versus the Attorney General
    Nairobi Petition No.147 of 2015
  • G4S Security Services (K) Ltd versus Joseph Kamau & 468 others
    [2018] eKLR
  • Maria Machocho versus Total (K)
    Industrial Cause No. 2 of 2012
  • Maurice Adongo Anyango versus Kenyatta International Convention Centre
    [2018] eKLR
  • Speaker of the National Assembly v Karume
  • R versus East Berkshire Health Authority, ex p. Walsh
    [1984] 0 APP.L.R. 05/14
  • Nicholas Mayieka & 22 others versus Judicial Service Commission
    Petition No.260 of 2016 (Nakuru)
Jurisdiction invoked
Article 162(2) of the Constitution (court of equal status with jurisdiction over employment and labour relations)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Ndegwa Nderitu v Teachers Service Commission [2019] KEELRC 1702 (KLR)", Case Analysis (2019). Petition dated 21st September, 2018 (Employment and Labour Relations Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1702/eng@2019-04-29

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