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ELRCDismissedNot stated in the excerpt provided· [2020] KEELRC 240 (KLR)

David Muthui Ndegwa v Director of Public Prosecutions & another [2020] KEELRC 240 (KLR)

Employment and Labour Relations Court
13 November 2020
MOMaureen Onyango
2,413 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a worker's time limit to sue starts when an unlawful interdiction ends, not when it began.

What this practically means

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Executive summary

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The 1st Respondent, the Office of the Director of Public Prosecutions, raised a preliminary objection seeking the striking out of the Petition filed by David Muthui Ndegwa, a former Clerical Officer interdicted on 10th June 2016 after reporting losses from the Respondent's store. The objection contended that the Petition, filed on 12th June 2019, was two days outside the three-year limitation period prescribed by Section 90 of the Employment Act read with Section 4(1) of the Limitation of Actions Act, and that the application to amend the Petition was an abuse of process. The Respondent relied on authority holding that a statute-barred claim deprives the court of jurisdiction. The Petitioner countered that the cause of action accrued not on the date of interdiction but on 10th September 2016, when the three-month maximum interdiction period under Section 11.17.5.5 of the ODPP Human Resource Manual expired without any disciplinary determination. The court framed two issues: when the cause of action arose, and whether the preliminary objection was merited. Adopting the definition of a cause of action from Drummond Jackson v British Medical Association as applied in Kenyan authority, and noting that the interdiction letter was expressed to run 'until the case is determined' while the Manual capped interdiction at three months, the court held that the cause of action arose on the date the interdiction period was to lapse. The Petition, filed within three years of that date, was therefore not time-barred. The preliminary objection was dismissed with costs to the Petitioner. The judgment was delivered virtually pursuant to COVID-19 pandemic directions.

Key legal issues

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01

When the cause of action arose for limitation purposes under Section 90 of the Employment Act

Holding

The cause of action arose when the three-month interdiction period lapsed, not when the interdiction took effect

Reasoning

The Interdiction Letter interdicted the Petitioner 'until the case is determined'. The ODPP Human Resource Manual, Section 11.17.5.5, caps interdiction at three months within which investigations must be completed. The Petitioner's grievance is that he was kept on interdiction beyond that period without full benefits. His complaint therefore crystallised on 10th September 2016 when the three months expired, making the Petition filed on 12th June 2019 timely.

p. 3
02

Whether the preliminary objection on limitation and jurisdiction was merited

Holding

It was not; the Petition was filed within the statutory limitation period and the objection was dismissed with costs

Reasoning

Having determined that the cause of action arose on expiry of the interdiction period rather than on the date of interdiction, the court found the suit was instituted within three years as required by Section 90 of the Employment Act. The jurisdictional argument premised on a time-barred claim consequently fell away, and the objection failed as a pure point of law on the pleaded facts.

p. 3

Legal principles established

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  • A cause of action is an act on the part of the defendant which gives the plaintiff his cause of complaint
  • Where a claim challenges an indefinite interdiction exceeding the prescribed maximum period, time under Section 90 of the Employment Act runs from the expiry of the permissible interdiction period, not the date of interdiction

Court orders

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  1. 1.The 1st Respondent's Notice of Preliminary Objection dated 10th March 2020 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Petitioner

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)
  • Employment ActSection 90
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • ODPP Human Resource ManualSection 11.17.5.5

Cases cited (14)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Mattew Kamanu Mwaura v Permanent Secretary Office of the President Provincial Administration & 2 others
    [2018] eKLR (Petition 3 of 2017)
  • Ephraim Gachigua Mwangi v Teachers Service Commission & Board of Management Thogoto Teachers College
    [2018] eKLR (Cause 215 of 2017)
  • David Ngugi Waweru v Attorney General & Another
    [2017] eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] eKLR (Civil Appeal 158 of 2015)
  • Seven Seas Technologies Limited v Eric Chege
    [2014] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Central Kenya Ltd. v Trust Bank & 4 Others
    Ca No. 222 of 1998
  • Anarita Karimi Njeru v Republic (No. 1)
    (1979) I KLR 154
  • Mumo Matemu v Trusted Society of Human Rights Alliance
    Civil Appeal No. 290 of 2012 (2013) eKLR
  • D. T Dobie and Company (Kenya) Limited v Muchina
    (1982) KLR 1
  • Drummond Jackson v Britain Medical Association
    (1970) 2 WLR 688
  • Jane Njeri Mbugua v Teachers Service Commission
    [2017] eKLR
  • Attorney General & Another v Andrew Maina Githinji & Another
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; limitation under Section 90 of the Employment Act and Section 4(1) of the Limitation of Actions Act

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, "David Muthui Ndegwa v Director of Public Prosecutions & another [2020] KEELRC 240 (KLR)", Case Analysis (2020). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/240/eng@2020-11-13

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