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ELRCDismissedNot stated in the judgment· [2019] KEELRC 2547 (KLR)

Evans Mutungi Musyoka v County Government of Makueni [2019] KEELRC 2547 (KLR)

Employment and Labour Relations Court of Kenya
29 January 2019
MOMAUREEN ONYANGO
1,015 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee's claim over a 2001 suspension failed because Kenyan employment law then allowed suspensions without reasons, and the claim came 12 years too late.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a Council Askari, claimed that his suspension on 18th May 2001 was unlawful, having lasted 104 months and 21 days without payment or a stated reason, and sought salary for the suspension period, damages for unlawful suspension, costs and interest. The Respondent asserted that the suspension was grounded in good faith and in the general interest of the council, and that the failure to communicate reinstatement was an oversight. The Respondent did not proceed with its case or file submissions, and the cause was deemed undefended because its counsel was not properly on record. The court framed two issues: whether the suspension was unlawful, and whether the Claimant was entitled to the reliefs sought. Applying the pre-2007 Employment Act, Cap 226, the court held that the 2001 suspension predated the Employment Act 2007 and that employers could then suspend and terminate at will, adopting the Court of Appeal's statement in Kenya Revenue Authority v Menginya Salim Murgani. On relief, the court found no evidential link between the pre-suspension Askari position and the 2010 deployment as Office Messenger, so no reinstatement was established; and even if redeployment amounted to reinstatement, the salary claim had accrued in 2001 and was filed about 12 years later, making it statute barred. The claim was dismissed with no orders for costs on 29th January 2019.

Key legal issues

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01

Whether the Claimant's suspension was unlawful

Holding

The suspension was not unlawful because it occurred in 2001, before the Employment Act 2007 came into force; the applicable law (Employment Act, Cap 226) was silent on suspension and permitted employers to act at will.

Reasoning

The court held that the suspension took place in 2001, well before the Employment Act 2007. The then applicable law, Employment Act Cap 226, contained no provisions on suspension and employers could suspend or terminate employees at will. Relying on the Court of Appeal's statement in Kenya Revenue Authority v Menginya Salim Murgani, the court concluded that no natural justice obligations applied to the 2001 suspension, so it could not be characterised as unlawful.

p. 2
02

Whether the Claimant is entitled to the reliefs sought

Holding

The reliefs were refused: the deployment letter of 9th March 2010 did not evidence reinstatement, and the salary claim was statute barred, having accrued in 2001 and sued on in 2013.

Reasoning

The court found no evidence connecting the pre-suspension employment (as Askari) with the 2010 deployment (as Office Messenger), so the Claimant could not establish reinstatement. Even assuming redeployment amounted to reinstatement, the salary claim had accrued on 18th May 2001 and was filed about 12 years later, making it statute barred. The claim was therefore dismissed in its entirety.

p. 2

Legal principles established

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  • Prior to the Employment Act 2007, employers could suspend and terminate employment at will without observing principles of natural justice.

Court orders

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  1. 1.The claim is dismissed with no orders for costs.

Authorities

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Legislation

  • Employment Actsection 49
  • Labour Institutions Actsection 51
  • Employment Act, Cap 226 of the Laws of Kenya (repealed)Not specified
  • Employment Act 2007Not specified
  • Terms and Conditions of Service for Officers of Local Authorities 2012Not specified

Cases cited (4)

  • Mary Chemweno Kiptui vs. Kenya Pipeline Company Limited
    [2014] eKLR
  • Donald C. Avude vs. Kenya Forest Service
    [2015] eKLR
  • Paul Ng’eno vs. Pyrethrum Board of Kenya Ltd
    [2013] eKLR
  • Kenya Revenue Authority vs. Menginya Salim Murgani
    [2010] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under section 49 of the Employment Act and section 51 of the Labour Institutions Act as invoked by the Claimant (no constitutional provision stated)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Evans Mutungi Musyoka v County Government of Makueni [2019] KEELRC 2547 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2547/eng@2019-01-29

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