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ELRCStruck OutNot stated in judgment· [2022] KEELRC 187 (KLR)

Stephen Mulungu Kyalo v National Police Service Commission [2022] KEELRC 187 (KLR)

Employment and Labour Relations Court
20 April 2022
3,113 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a former police officer's 2016 salary claim because the clock started in 1991 when he was interdicted, not at retirement 22 years later.

What this practically means

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Executive summary

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The National Police Service Commission raised a preliminary objection to a claim by a former police sergeant enlisted in 1975 who was interdicted in June 1991 following a criminal conviction for theft of a government motor vehicle, convicted and sentenced to three years' imprisonment, and dismissed from the Force in February 1993. The Claimant filed suit in May 2016 seeking half salary from June 1991 to June 2013 when he would have attained retirement age at 60, general damages, interest and a certificate of service. The Respondent argued the suit was time barred under the Limitation of Actions Act and Section 90 of the Employment Act, 2007, frivolous, vexatious and an abuse of process, and that the Commission had no mandate to reopen disciplinary matters concluded before its establishment under Article 246(3) of the Constitution. The Claimant contended time began running only on his deemed retirement on 1st July 2013 under the Public Service Superannuation Scheme Act, and that absent a dismissal letter he remained an employee on interdiction until retirement. Applying the Mukisa Biscuits threshold, the court found the objection raised a pure point of law. It held the cause of action for unpaid salary accrued in July 1991 upon interdiction and stoppage of salary, that the choice of retirement age as the accrual date was designed to defeat the Limitation of Actions Act, and that the suit was hopelessly out of time. The suit was struck out as time barred, with each party bearing its own costs. The ruling was delivered virtually at Nairobi on 20th April 2022.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

Yes - limitation is a pure point of law pleaded on the assumption that the other side's facts are correct

Reasoning

The court applied the classic Mukisa Biscuits test. Since the duration within which a suit must be filed is a legal issue, the test was satisfied. A preliminary objection based on limitation of time is a threshold question determinative of the suit.

p. 3
02

Whether the claim was time barred

Holding

Yes - the cause of action accrued in July 1991 upon interdiction and stoppage of salary, so the 2016 suit was hopelessly out of time

Reasoning

The court found the cause of action for unpaid salary accrued in July 1991 after interdiction, with time running uninterrupted. The applicable law before the Employment Act 2007 was Section 4(1)(a) of the Limitation of Actions Act. The Claimant's choice of retirement age in 2013 as the accrual date was designed to defeat the Limitation of Actions Act, and his own 2016 letter showed salary stoppage as the accrual date.

p. 4

Legal principles established

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  • A preliminary objection on limitation raises a pure point of law and may dispose of the suit if it succeeds
  • Limitation is a jurisdictional issue that may be raised at any stage of proceedings
  • Actions founded on contract may not be brought after six years from when the cause of action accrued

Court orders

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  1. 1.The suit by the Claimant is struck out for being time barred
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 246(3); Article 41; Article 159(2)(d); Article 48
  • Employment Act, 2007Section 90
  • Limitation of Actions ActSection 4(1)(a)
  • Public Service Superannuation Scheme ActSection 27(1)
  • Police Act, Cap 84 (repealed)Section 44
  • Employment Act 1977, Cap 226referred to as applicable law without limitation clause
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Force Standing OrdersParagraph 25, Chapter 20

Cases cited (19)

  • Johnstone Ogechi Mose v National Police Service Commission
    [2017] eKLR
  • Daniel Kago Gachanja v Inspector General & 2 others
    [2020] eKLR
  • Haron Onyancha v National Police Service Commission & another
    [2017] eKLR
  • Iga v Makerere University
    [1972] EA 65
  • Martha Karwirwa Anthony v Barclays Bank of Kenya Ltd
    [2019] eKLR
  • Gathoni v Kenya Co-operative Creameries Ltd
    [1982] KLR 104
  • Republic v Commission on Administrative Justice Ex-Parte National Social Security Fund Board of Trustees
    [2015] eKLR
  • Fremar Construction Co. Ltd v Minakshi Navin Shah
    [2005] eKLR
  • Trust Bank Limited v H.S. Amin & Company Ltd & another
    [2000] KLR 164
  • Peter George Antony D'Costa v Attorney General & another
    [2013] eKLR
  • Godfrey Paul Okutoyi v Habil Olaka & Another
    [2018] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2014] eKLR
  • Susan Waithera Kariuki & 4 others v Town Clerk Nairobi City Council & 3 others
    [2013] eKLR
  • Paul Mwaura Mbugua v Kagwe Tea Factory Ltd & Another
    [2012] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA 696
  • Leisure Lodges Limited v Amirali Shariff
    [2019] eKLR
  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another
    [2016] eKLR
  • Divecon v Samani
    (1995-1998) I EA 48
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 90) and the Limitation of Actions Act (Cap 22) considered; Article 246(3) of the Constitution cited regarding the Respondent's mandate

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, "Stephen Mulungu Kyalo v National Police Service Commission [2022] KEELRC 187 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/187/eng@2022-04-20

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