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ELRCPartially AllowedCause (not stated in judgment excerpt)· [2021] KEELRC 2232 (KLR)

Moses Enonda Maleya v Teachers Service Commission [2021] KEELRC 2232 (KLR)

Employment and Labour Relations Court
3 February 2021
RSRadido Stephen
690 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 Claimant, a teacher employed by the Teachers Service Commission in February 1994, was dismissed for immoral behaviour by a letter dated 24 April 2012. His appeal was dismissed and communicated on 3 July 2012. He filed this claim on 16 October 2015 alleging unfair termination of employment and breach of contract. The Commission raised a Notice of Preliminary Objection contending that the claim was time barred under section 4(1)(a) of the Limitation of Actions Act and section 3(2) of the Public Authorities Limitation Act, and sought that the Statement of Claim be struck out with costs. In submissions, the Commission relied on section 90 of the Employment Act, 2007 and authorities including Attorney General v Andrew Maina Githinji and Thuranira Karauri v Agnes Ncheche. The Claimant countered that his action was grounded in violations of Articles 27, 28, 29(d) & (f), 30 and 41 of the Constitution, and relying on David Gitau Njau v Attorney General and Justus Atulo Ashioya v Akshar Team Security Ltd, argued that limitation law does not apply to fundamental rights claims. The court held that section 4(1)(a) of the Limitation of Actions Act no longer governs contract of service claims, which fall under section 90 of the Employment Act; that the cause of action accrued on notification of dismissal in April 2012; and that the claim filed on 16 October 2015 was outside the three-year window. Repackaging the dismissal claim as a constitutional rights violation did not assist, as the direct anchor of the action was a contract of service, and the court was bound by the Court of Appeal in the Githinji case. The Preliminary Objection was upheld, the Cause dismissed, with no order on costs.

Key legal issues

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01

Whether limitation law applies to a dismissal claim recast as a constitutional rights violation

Holding

It does not assist the claimant; the direct anchor of the action is dismissal from a contract of service governed by the Employment Act, so the limitation period applies

Reasoning

The court held that although the claimant pleaded violations of Articles 27, 28, 29(d) & (f), 30 and 41, the substance of the action was dismissal from a contract of service, which falls within contract and employment law under the Employment Act and the TSC statutory framework. Reliance on authority suggesting limitation law does not apply to fundamental rights claims was therefore unavailing. The court was also bound by the Court of Appeal's position in the Githinji case.

p. 2
02

When the cause of action accrued and whether the claim was filed in time

Holding

The cause of action accrued on notification of dismissal in April 2012 and the claim filed on 16 October 2015 was outside the three-year window

Reasoning

Applying section 90 of the Employment Act, 2007, the three-year limitation period ran from the letter notifying dismissal (dated 26 April 2012), expiring on 26 April 2015. The claim, instituted on 16 October 2015, was filed outside that window. The court noted section 4(1)(a) of the Limitation of Actions Act no longer applies to contract of service claims, and the Commission had rightly abandoned reliance on it.

p. 2

Legal principles established

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  • A cause of action for wrongful dismissal accrues on notification of dismissal, and proceedings must be brought within three years under section 90 of the Employment Act
  • Dressing a dismissal claim in the language of fundamental rights does not escape limitation law where the direct anchor of the action is a contract of service

Court orders

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  1. 1.Notice of Preliminary Objection upheld
  2. 2.The Cause dismissed
  3. 3.No order on costs

Authorities

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Legislation

  • Limitation of Actions Actsection 4(1)(a)
  • Public Authorities Limitation Actsection 3(2)
  • Employment Act, 2007section 90
  • Constitution of Kenya, 2010Articles 27, 28, 29(d) & (f), 30 and 41

Cases cited (4)

  • Attorney General & Ar v Andrew Maina Githinji & Ar
    (2016) eKLR
  • Thuranira Karauri v Agnes Ncheche
    (1997) eKLR
  • David Gitau Njau & 10 Ors v the Attorney General
    (2012) eKLR
  • Justus Atulo Ashioya v Akshar Team Security Ltd
    Cause No. 849 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the statutory framework governing the Teachers Service Commission

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, "Moses Enonda Maleya v Teachers Service Commission [2021] KEELRC 2232 (KLR)", Case Analysis (2021). Cause (not stated in judgment excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2232/eng@2021-02-03

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