Deirdre Naserian & 3 others v Judicial Service Commission [2020] KEELRC 1148 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Date of accrual of cause of action in unfair termination/breach of contract
The cause of action accrues on the date of dismissal, not on acquittal or determination of disciplinary appeals
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.
Continuing injury argument
Rejected; breaches arose at the date of dismissal, so even on the Claimants' own theory they were out of time
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.
Applicable limitation statute
Dismissals predated the Employment Act 2007, so section 4(1) of the Limitation of Actions Act governed; either way claims were time-barred
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.
Legal principles established
#- 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
#- 1.Upholding the Preliminary Objection
- 2.Striking out the Memorandum of Claim filed on 15 December 2015
- 3.No order on costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngeno v AIC Litein Hospital (Employment and Labour Relations Cause E059 of 2023) [2024] KEELRC 2066 (KLR)[2024] KEELRC 2066 (KLR)25 Jul 2024
Cite this brief
#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.