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ELRCPartially AllowedPlaint filed at High Court Mombasa on 12th April 2000 (number not stated in judgment)· [2020] KEELRC 1383 (KLR)

Fredrick Miriga v Attorney General [2020] KEELRC 1383 (KLR)

Employment and Labour Relations Court
28 February 2020
JRJames Rika
1,325 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A civil servant who sued over a 1990s dismissal won only his Certificate of Service — courts apply the law that existed when you were dismissed, and you must prove your claims with documents.

What this practically means

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Executive summary

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The Claimant, engaged in 1967 as a Senior Technical Officer at the Mombasa Industrial Training Centre, sued the Public Service Commission alleging wrongful termination on the ground of desertion. He asserted he was on scheduled leave from 1st December 1992, that his salary was stopped from December 1992, that a dismissal letter issued on 5th October 1995 but was only availed to him later, and that he worked unpaid until 1998. He claimed over Kshs. 12.5 million across multiple heads plus a declaration that termination was unfair and unlawful. The Respondent defended the termination as lawful under the Service Commissions Act and, 19 years into the suit, filed a preliminary objection on limitation under Section 4(1)(a) of the Limitation of Actions Act and Section 90 of the Employment Act 2007. The court held both parties were misguided in invoking the Employment Act 2007 and Article 47, since those did not exist at termination; the applicable law was the repealed Employment Act Cap 226 and the Service Commissions Act. The claim was not time-barred, having been filed in 2000 within six years. On the evidence, however, the Claimant failed to prove he resumed duty in January 1993 or worked unpaid until 1998, and his account of when he received the dismissal letter was inconsistent with his 1996 appeal and his own affidavit. All monetary prayers failed. Only the Certificate of Service, allowed under Section 18 of Cap 226, was granted. There was no order on costs. Judgment dated and delivered at Mombasa on 28th February 2020.

Key legal issues

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01

Limitation

Holding

Claim was not time-barred; filed in 2000, within 6 years of termination (whether 1995 or 1998)

Reasoning

The Respondent's preliminary objection invoked Section 4(1)(a) of the Limitation of Actions Act, which sets a 6-year limit for contract claims. Whether termination is dated 1995 (dismissal letter) or 1998 (alleged receipt), the 2000 filing fell within the period. Section 90 of the Employment Act 2007 was inapplicable as it postdated termination.

p. 2
02

Applicable law

Holding

The repealed Employment Act Cap 226 and the Service Commissions Act governed the termination, not the Employment Act 2007 or Article 47

Reasoning

Both parties wrongly invoked provisions of the Employment Act 2007 and the Constitution, none of which existed in 1995/1998 when the contract was terminated. The court must apply the law in force at termination.

p. 2
03

Proof of unfair termination and entitlement to reliefs

Holding

Claimant failed to prove he resumed duty in January 1993 and worked without salary until 1998; his account of when he learnt of dismissal was inconsistent

Reasoning

The Claimant exhibited no letters to the Permanent Secretary and no proof of resumption of duty. His narrative on when he received the dismissal letter conflicted: he appealed in 1996 and stated in a Replying Affidavit that he was served on 31st July 1997, contradicting his claim that he first learnt of dismissal in 1998. Monetary heads therefore lacked factual foundation.

p. 3
04

Certificate of Service

Holding

Entitled under Section 18 of the repealed Employment Act Cap 226

Reasoning

This prayer alone was merited and allowed under the law in force at termination.

p. 3

Legal principles established

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  • The substantive law applicable to a termination is the law in force at the date of termination, not later-enacted statutes
  • A claim founded on contract must be filed within 6 years under Section 4(1)(a) of the Limitation of Actions Act

Court orders

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  1. 1.The Respondent shall release to the Claimant his Certificate of Service
  2. 2.Other prayers are declined
  3. 3.No order on the costs

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act, 2007Sections 41, 43, 45, 47(5)
  • Limitation of Actions Act, Cap 22Section 4(1)(a)
  • Service Commissions Act, Cap 185
  • Employment Act, Cap 226 (repealed)Section 18
  • Constitution of KenyaArticle 47 (Fair Administrative Action)
Jurisdiction invoked
Original employment and labour relations jurisdiction (claim transferred/filed as employment claim; claim originally filed in the High Court Mombasa on 12th April 2000)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Fredrick Miriga v Attorney General [2020] KEELRC 1383 (KLR)", Case Analysis (2020). Plaint filed at High Court Mombasa on 12th April 2000 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1383/eng@2020-02-28

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