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ELRCDismissedNot stated in the judgment· [2021] KEELRC 420 (KLR)

James Etyang Karani v National Police Service Commission [2021] KEELRC 420 (KLR)

Employment and Labour Relations Court
25 November 2021
1,270 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellant, a former police officer dismissed on 15 January 2008, sued the Respondents in the Magistrates Court on 16 December 2019 claiming that his termination was unfair and unlawful. The Respondents raised a preliminary objection that the suit was time-barred under the Limitation of Actions Act and the Employment Act, 2007, that the claimant's right to sue had lapsed, and that the suit was an abuse of process. On 27 November 2020 the Magistrate upheld the objection and held the suit time-barred. On appeal, the Employment and Labour Relations Court at Kisumu (Radido Stephen, J) considered three questions: whether the objection was a true preliminary objection, whether the National Police Service Act, 2011 applied, and when the cause of action accrued. The court accepted the Appellant's reading of section 89(6) of the National Police Service Act (dismissal takes effect only after Commission approval) but held the Act, enacted in 2011, could not apply retrospectively to a 2008 dismissal when the Commission did not exist. The Employment Act, 2007 was likewise inapplicable, both because it had not commenced and because section 3(2)(b) ousts it from the Kenya Police Service. Applying Court of Appeal authority, the court held the cause of action accrued on receipt of the dismissal letter in 2008, and that internal appeals do not stop limitation time absent estoppel under section 39 of the Limitation of Actions Act. The appeal was dismissed with no order on costs.

Key legal issues

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01

Preliminary objection and fact-finding

Holding

Although a true PO must be a pure point of law, the appellant's reliance on section 89(6) of the National Police Service Act failed because that 2011 Act does not apply to a 2008 dismissal absent express retrospectivity

Reasoning

The appellant argued the PO failed the Mukisa Biscuits test because the court had to establish whether the National Police Service Commission had approved and confirmed his dismissal under section 89(6) of the National Police Service Act. The court accepted the interpretation of the provision but held the Act was enacted in 2011, three years after the 2008 dismissal, the Commission did not exist in 2008, and no retrospective application was demonstrated. The Magistrate therefore erred neither in law nor fact.

p. 2
02

Applicable statute and accrual of cause of action

Holding

The Employment Act, 2007 did not apply to a 2008 dismissal and in any event excludes the Kenya Police Service; the cause of action accrued on dismissal on 15 January 2008, not on the later appeal decision of 2 February 2017

Reasoning

The dismissal letter was dated 15 January 2008, before the Employment Act, 2007 commenced, and section 3(2)(b) of that Act ousts its application to the Kenya Police Service, so reliance on it was misplaced. Following the Court of Appeal in Attorney-General v Andrew Maina Githinji and David Ngugi Waweru v Attorney General, the court held that a cause of action accrues when the dismissal letter is received and that pursuing an internal or disciplinary appeal does not arrest limitation unless estoppel arises under section 39 of the Limitation of Actions Act.

p. 2

Legal principles established

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  • An appeal or internal disciplinary process does not stop limitation time from running unless there is estoppel by the employer under section 39 of the Limitation of Actions Act
  • A cause of action in a dismissal case accrues on the date the employee receives the letter of dismissal

Court orders

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  1. 1.The Appeal is dismissed with no order on costs.

Authorities

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Legislation

  • Limitation of Actions Actsection 39
  • Employment Act, 2007section 3(2)(b)
  • National Police Service Actsection 89(6)
  • Constitution of KenyaArticle 47
  • Commission on Administrative Actions Act, 2011
  • Fair Administrative Action Act (No. 4 of 2015)

Cases cited (4)

  • Kamau v Mungai
    (2006) 1 KLR 150
  • Mukisa Biscuits Manufacturing Ltd v West End Distributors Ltd
    (1969) EA 696
  • Attorney-General & Ar v Andrew Maina Githinji & Ar
    (2015) eKLR
  • David Ngugi Waweru v Attorney General & Ar
    (2017) eKLR
On appeal from
Magistrates Court
Not stated
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over an appeal from the Magistrates Court (leave granted; specific provision not cited in the judgment)

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, "James Etyang Karani v National Police Service Commission [2021] KEELRC 420 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/420/eng@2021-11-25

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