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ELRCStruck OutPetition dated 21st May 2021· [2022] KEELRC 503 (KLR)

Maxwell Sifuna vTeachers Service Commission [2022] KEELRC 503 (KLR)

Employment and Labour Relations Court
17 March 2022
2,841 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 Respondent filed a Notice of Preliminary Objection dated 31st August 2021 against the Petitioner's Petition dated 21st May 2021, arguing that the court lacked jurisdiction because the claim was time barred under Section 90 of the Employment Act, that the Petition did not meet constitutional petition thresholds, and that it was frivolous and an abuse of process. The Petitioner was dismissed by letter dated 19th January 2017 and appealed internally; the dismissal was upheld on 21st December 2018. He filed the Petition on 4th June 2021, contending that the internal appeal and non-adjudicatory dispute resolution stopped the limitation clock, relying on Hawkins Wagunza Musonye v Rift Valley Railways. The court rejected this, adopting the position that the cause of action in employment claims accrues from the date of the letter communicating termination and that an internal appeal does not hold accrual in abeyance. Section 90 was held to be jurisdictional, not discretionary. The court further found that the remedies sought - quashing of the dismissal, reinstatement and salary equivalent - are statutory remedies under Section 49 of the Employment Act read with the ELRC Act, and that filing a constitutional petition citing Articles 19-50 of the Constitution cannot extend time or circumvent the statute. The Petition was found to be a classic unfair dismissal claim disguised as a constitutional petition and an abuse of court process. The preliminary objection was upheld, the Petition struck out with costs to the Respondent.

Key legal issues

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01

Accrual of cause of action and limitation under Section 90 of the Employment Act

Holding

The cause of action accrued on 19th January 2017 when the dismissal letter was issued; the internal appeal did not stop the clock, so the Petition filed on 4th June 2021 was out of time

Reasoning

The court adopted Justice Marete's position in Kenya Union of Commercial Food and Allied Workers that accrual takes effect from the date of the letter communicating termination, and that seeking a review or appeal does not hold accrual in abeyance. The Petitioner's reliance on Hawkins Wagunza Musonye (negotiations stopping the clock) was rejected. Section 90 was held to be jurisdictional law, not discretionary, so the court was obliged to down its tools.

p. 2
02

Whether constitutional petition procedure can be used to avoid statutory remedies and limitation

Holding

The remedies sought (quashing, reinstatement, salary) are available under Section 49 of the Employment Act read with the ELRC Act; citing constitutional Articles does not extend time or circumvent the statute

Reasoning

Following Peter Ndegwa Nderitu v TSC, Gabriel Mutava, Josphat Ndirangu and Daniel Muganda, the court held that where fundamental rights are regulated by legislation, that legislation is the primary means of enforcement and should not be circumvented by direct reliance on constitutional provisions. The preamble of the Petition betrayed it as a dismissal claim in disguise.

p. 3

Legal principles established

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  • Limitation under Section 90 of the Employment Act is jurisdictional, not discretionary, and the cause of action in employment claims accrues from the date of the letter communicating termination, not from the outcome of an internal appeal
  • A litigant cannot circumvent statutory limitation by disguising an ordinary unfair dismissal claim as a constitutional petition

Court orders

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  1. 1.The Notice of Preliminary Objection dated 31st August 2021 is upheld
  2. 2.The Petition dated 21st May 2021 is struck out
  3. 3.Costs to the Respondent

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSections 41, 43, 45, 49(3)(a)
  • Limitation of Actions Act (Cap 22)Section 4(1)
  • Employment and Labour Relations Court ActSection 12(3)
  • Employment and Labour Relations ActSection 72(3)
  • Constitution of KenyaArticles 19, 20, 21, 22, 23, 26, 27, 28, 41, 43, 46, 47, 50, 159
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules

Cases cited (12)

  • Hawkins Wagunza Musonye -vs- Rift Valley Railways Kenya Limited
    (2015) eKLR
  • Kenya Union of Commercial Food and Allied Workers -vs- Water Resource Management Authority and Another
    2015 eKLR
  • Hilarion Mwabolo -vs- Kenya Commercial Bank
    (2013) eKLR
  • Anaclet Kalia Musau -vs- Ali & 2 others
    (2020) eKLR, Nairobi Civil Appeal No. 111 of 2017
  • Gabriel Mutava & 2 Others -vs- Managing Director Kenya Ports Authority and Another
    (2016) eKLR
  • Daniel N. Muganda -vs- Kenyatta University & 3 others
    (2013) eKLR
  • Josphat Ndirangu -Vs- Henkel Chemicals (EA) Limited
    (2013) eKLR, Mombasa ELRC Petition 1 of 2013
  • Peter Ndegwa Nderitu -vs- Teachers Service Commission
    (2019) eKLR, Petition No. 11 of 2018
  • Alphonse Mwangeni Munga & 10 others -vs- African Safari Club Ltd
    Nairobi High Court Petition No. 564 of 2004
  • R -vs Anarita Karimi Njeri
  • Kosolu Buru Issack -vs- Ministry of Interior and Coordination of National Government & 3 others
    (2021) eKLR
  • Martin Lemaiyan Mokoosio & Another -vs- Restuma Praful Chandaria Vadera & 3 others
    (2021) eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act; constitutional petition under Articles 22, 41 and 43 of the Constitution

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, "Maxwell Sifuna vTeachers Service Commission [2022] KEELRC 503 (KLR)", Case Analysis (2022). Petition dated 21st May 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/503/eng@2022-03-17

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