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ELRCStruck OutNot stated in the extract· [2020] KEELRC 1148 (KLR)

Deirdre Naserian & 3 others v Judicial Service Commission [2020] KEELRC 1148 (KLR)

Employment and Labour Relations Court
8 May 2020
1,339 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenyan employees must sue for unfair dismissal within three years of being dismissed — waiting for criminal acquittals or disciplinary appeals does not extend that deadline.

What this practically means

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Executive summary

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Four Claimants, all dismissed in 2006 and early 2007 following interdiction and criminal charges of which they were acquitted on 28 December 2012, jointly sued the Respondent on 15 December 2015 alleging violation of fair administrative action, breach of contract and wrongful termination. They sought outstanding leave, leave allowances, accrued salaries during interdiction and pending appeals, salary in lieu of notice, compensation, and declarations that the dismissals were wrongful/unconstitutional. The Respondent filed a Notice of Preliminary Objection on 6 November 2019 contending the claim was statute-barred under section 90 of the Employment Act 2007, section 4(1) of the Limitation of Actions Act and section 3 of the Public Authorities Limitations Act, that the suit was an abuse of process, and that it should be struck out with costs. Radido J framed the primary issue as when the causes of action accrued: on dismissal, acquittal, or determination of disciplinary appeals. Following the Court of Appeal in Attorney General & Anor v Andrew Maina Githinji & Anor (2016), the Court held that a cause of action for unfair termination or breach of contract accrues at the date of termination. The Claimants' arguments that the employment relationship was preserved pending appeals and criminal proceedings, and that continuing injury applied, were rejected for want of any legal or contractual preservation provision, and because even a continuing injury would require suit within 12 months of dismissal. The Court upheld the Preliminary Objection, struck out the Memorandum of Claim filed 15 December 2015, and made no order on costs.

Key legal issues

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01

Date of accrual of cause of action in unfair termination/breach of contract

Holding

The cause of action accrues on the date of dismissal, not on acquittal or determination of disciplinary appeals

Reasoning

Relying on the Court of Appeal decision in Attorney General & Anor v Andrew Maina Githinji & Anor, the Court held that dismissed employees have all the facts at dismissal and can sue then; awaiting criminal or appeal outcomes is at their own peril. The Claimants' causes of action arose on dismissal in 2006/2007 and suits filed in 2015 were outside the 3-year limitation period.

p. 2
02

Continuing injury argument

Holding

Rejected; breaches arose at the date of dismissal, so even on the Claimants' own theory they were out of time

Reasoning

The Court found the continuing-injury argument self-defeating: if it applied, claims had to be filed within 12 months of cessation of the continuing injury, which could only be within 12 months of dismissal or stoppage of allowances/salaries or breach of contract - all of which occurred at dismissal, not at acquittal or appeal determination.

p. 3
03

Applicable limitation statute

Holding

Dismissals predated the Employment Act 2007, so section 4(1) of the Limitation of Actions Act governed; either way claims were time-barred

Reasoning

All dismissals occurred in 2006 when the Employment Act 2007 was not in force, so section 4(1) of the Limitation of Actions Act applied. The Court noted that whether under section 4(1) of the Limitation of Actions Act or section 90 of the Employment Act 2007, the claims were filed outside the prescribed limitation period.

p. 3

Legal principles established

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  • A cause of action for unfair termination of employment or breach of employment contract accrues at the date of termination, not at the conclusion of criminal proceedings or disciplinary appeals
  • Unless there are express contractual or legal provisions preserving the employment relationship, the contract stands determined upon dismissal

Court orders

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  1. 1.Upholding the Preliminary Objection
  2. 2.Striking out the Memorandum of Claim filed on 15 December 2015
  3. 3.No order on costs

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Actsection 4(1)
  • Public Authorities Limitations Actsection 3

Cases cited (3)

  • George Hiram Ndirangu v Equity Bank Ltd
    (2015) eKLR
  • Stephen Muange Mutua v Kenya Revenue Authority
    (2017) eKLR
  • Attorney General & Ar v Andrew Maina Githinji and Ar
    (2016) eKLR
Jurisdiction invoked
Jurisdiction defeated by limitation under section 90 of the Employment Act, 2007 and section 4(1) of the Limitation of Actions Act; no constitutional/statutory grant is quoted in the extract

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Deirdre Naserian & 3 others v Judicial Service Commission [2020] KEELRC 1148 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1148/eng@2020-05-08

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