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ELRCDismissedNot stated in judgment (Memorandum of Claim dated 10th May 2017)· [2021] KEELRC 1374 (KLR)

Peancy Kavita Makau v Kangundo High School [2021] KEELRC 1374 (KLR)

Employment and Labour Relations Court
2 June 2021
NMNzioki wa Makau
1,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a meritorious unfair dismissal claim solely because it was filed five years late — employment claims must be filed within three years.

What this practically means

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Executive summary

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The claimant, a former School Bursar employed by Kangundo High School in November 1980, sued the school alleging constructive dismissal. He averred that in July 2012 he was sent on compulsory leave to allow examination of the school's books, then arrested and charged in Kangundo SPM Criminal Case No. 570 of 2012 with misappropriation of Kshs. 2,741,348.50. He claimed the audit was conducted by the Principal's unqualified brother and that he was ultimately acquitted on a no-case-to-answer ruling. He was interdicted in February 2013 on half pay, which was never restored, and he asserts he was retired early by letter dated 12th May 2017. He sought a declaration of constructive dismissal without due process, arrears of half salary of Kshs. 913,210/-, salary in lieu of notice, leave allowance for 2013 to 2016, damages, service gratuity and a certificate of service. The respondent did not enter appearance or file a defence, and the matter proceeded by formal proof. The claimant relied on authorities on constructive dismissal including Humphrey Sitati v Board of Management Lenana School. The court, however, invoked Section 90 of the Employment Act, 2007, which requires employment claims to be filed within three years, and applied the Court of Appeal's decision in Attorney General & Another v Andrew Maina Githinji. Holding that although the claimant had a good claim, the suit filed in 2017 over a 2012 dismissal was stale, the court dismissed the entire suit with no order as to costs on 2nd June 2021.

Key legal issues

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01

Limitation of employment claims under Section 90 of the Employment Act

Holding

The claim filed in 2017 over a dismissal/interruption of employment dating from 2012 was filed far outside the three-year limitation period and was dismissed despite merit

Reasoning

The court reproduced Section 90 of the Employment Act, which peremptorily limits actions arising out of the Act or a contract of service to three years. Relying on the Court of Appeal's reasoning in Attorney General & Another v Andrew Maina Githinji, the court noted the provision protects both parties from stale claims where memories have faded and documents lost. The claimant's cause of action arose in 2012 but suit was filed in 2017, well beyond the limitation window.

p. 2
02

Constructive dismissal (argued but not determined on the merits)

Holding

Not decided on the merits; the court assumed the claimant had a good claim but dismissed the suit on limitation grounds

Reasoning

The claimant relied on Humphrey Sitati v Board of Management Lenana School, citing Coca Cola East & Central Africa Limited v Maria Kagai Ligaga and Lord Denning's exposition in Western Executive (ECC) Limited v Sharp, arguing that indefinite suspension on half pay after acquittal amounted to a repudiatory breach entitling him to treat the contract as terminated. The respondent filed no appearance or defence and the matter proceeded by formal proof, but the court disposed of the claim on limitation.

p. 2

Legal principles established

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  • Claims based on the Employment Act or a contract of service must be commenced within three years of the act complained of, failing which they are time-barred and liable to dismissal

Court orders

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  1. 1.The claimant's suit is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim arising out of a contract of service)

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, "Peancy Kavita Makau v Kangundo High School [2021] KEELRC 1374 (KLR)", Case Analysis (2021). Not stated in judgment (Memorandum of Claim dated 10th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1374/eng@2021-06-02

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