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ELRCDismissedNot stated in judgment

Ndiege v Judicial Service Commission (Cause 793 of 2019) [2021] KEELRC 1454 (KLR)

Employment and Labour Relations Court
23 February 2021
MMM. Mbaru
1,577 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that when an employer delays discipline during suspension, the clock for suing starts at dismissal, not suspension.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi on a notice of preliminary objection dated 27th February 2020, by which the respondent argued that the claimant's suit for alimentary allowance was time barred under section 90 of the Employment Act, 2007, because the cause of action allegedly accrued on his suspension on 16th August 2016 while the claim was filed on 28th November 2019, and that the claim was therefore an abuse of process to be struck out with costs. The claimant countered, relying on Mukhisa Biscuits, that the objection was not a pure point of law and that the alimentary allowance under the Judiciary Human Resource Manual was a continuing monthly payment during a suspension that lasted until his dismissal on 27th March 2019. The court framed a single issue: whether the suit is time barred. Applying the reasoning in Elizabeth Cherono Kurgat, Donald C. Avude, Samson Ole Kisirkoi and Joshua Rodney Marimba, the court held that suspension is an administrative prerogative pending disciplinary proceedings; the delay of over two and a half years in concluding those proceedings could not be visited on the claimant; and the cause of action accrued on termination of employment on 27th March 2019, not on suspension. The claimant's rights during the suspension could not be negated by section 90. The preliminary objection was found without merit and dismissed, with costs to the claimant. The claim itself is to proceed to be heard on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit is time barred under section 90 of the Employment Act, 2007, such that the court lacks jurisdiction and the claim should be struck out

Key legal issues

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01

Whether the claim for alimentary allowance was time barred under section 90 of the Employment Act

Holding

The claim was not time barred; the cause of action accrued when the employment relationship ended on 27th March 2019, within three years of filing.

Reasoning

The claimant was suspended on 16th August 2016 to allow disciplinary proceedings over alleged misconduct. The disciplinary process concluded with dismissal on 27th March 2019, which terminated the employment. The delay of over two and a half years in concluding the disciplinary process was attributable to the respondent, who had absolute control over it. It would be a serious misreading of section 90 to bar claims arising during a suspension period that the employer itself prolonged.

p. 4
02

Whether suspension without payment of alimentary allowance gives rise to a continuing cause of action

Holding

Rights accruing during suspension remained secured while the claimant remained in employment, and could not be negated by section 90.

Reasoning

The court reasoned that the claimant remained in the employment of the respondent until his dismissal on 27th March 2019, and his rights within and during that employment were secured. The alimentary allowance was payable monthly during suspension under the Judiciary Human Resource Manual. Since the administrative process could have resulted in recall to work, the suspension did not crystallise a separate, immediately barable cause of action.

p. 4

Legal principles established

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  • Where an employer suspends an employee pending a disciplinary process that the employer delays unreasonably, the cause of action for claims arising during the suspension accrues on termination of the employment relationship, not on the date of suspension.
  • Suspension from employment is an administrative prerogative that may serve to remove an employee from duty pending investigations or as a sanction.

Court orders

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  1. 1.The notice of preliminary objection dated 27th February, 2020 is found without merit and is dismissed.
  2. 2.Costs to the claimant.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Original employment and labour relations jurisdiction; claims under the Employment Act, 2007 (section 90 limitation raised in objection)

Relief refused

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Respondent's prayer that the claim be struck out as time barred with costs

The court held the cause of action accrued on termination of employment (27th March 2019), not on suspension, so the claim filed on 28th November 2019 was within the three-year limitation period.

p. 4

Costs

Costs to the claimant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, objections made are found without merit and are hereby dismissed. costs to the claimant.
p. 4Final orders - dismissal of preliminary objection
such is not the essence of section 90 of the Act the cause of action accrued from the date the employment relationship terminated and not before. That is on 27th March, 2019.
p. 4Accrual of cause of action in suspension cases
Suspension from employment is an administrative prerogative. An employer is allowed to suspend an employee from duty for stated reasons.
p. 2Nature of suspension

Issues in the judgment

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minor

The coram line and case number are garbled/incomplete in the record; the judge's name appears as "M. MBAR?" and no case number is printed.

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, "Ndiege v Judicial Service Commission (Cause 793 of 2019) [2021] KEELRC 1454 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1454/eng@2021-02-23

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