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ELRCStruck OutCause No 234 of 2015· [2022] KEELRC 552 (KLR)

Salim Malakwen Komen v Attorney General & 2 others [2022] KEELRC 552 (KLR)

Employment and Labour Relations Court
10 March 2022
CBCHRISTINE N. BAARI
1,286 words in judgment
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The bottom line

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A Kenyan court struck out a wrongful dismissal claim filed nearly 12 years after the dismissal, because employment claims must be filed within six years.

What this practically means

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Executive summary

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In this first-instance employment claim, the Claimant, formerly in charge of court cells, was charged with aiding prisoners' escape in November 2003, dismissed with effect from 25th November 2003, and acquitted of the criminal charges on 15th February 2005. He alleged that administrative disciplinary charges had not been concluded at the time of dismissal, that his dismissal lacked due process, and that his internal appeal was unsuccessful. He sought general and special damages, a declaration of un-procedural dismissal, reinstatement in the alternative, salaries due from the date of dismissal, costs and interest. The Respondent, appearing through the Attorney General, filed a reply but called no witnesses, contending that there was reasonable apprehension of a crime and that fair administrative procedures were followed. The court framed three issues: whether the suit was statute barred, whether the dismissal was wrongful, and entitlement to reliefs. Applying Section 4(1) of the Limitation of Actions Act, the court held that the cause of action accrued on the date of dismissal in 2003 and that the claim filed on 2nd July 2015 was six years out of time. Relying on authority that jurisdiction is everything and that a court without it must down its tools, the court held it lacked jurisdiction and struck out the claim as statute barred, leaving the merits undecided. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the suit is statute barred

Holding

The suit is statute barred; the cause of action accrued on dismissal on 25th November 2003 and the suit filed on 2nd July 2015 was 6 years late under the six-year limitation period in Section 4(1) of the Limitation of Actions Act

Reasoning

The court found the cause of action accrued on the date of dismissal in 2003, as the claimant then had all facts needed to sue. The applicable law was Section 4(1) of the Limitation of Actions Act, which bars contract actions after six years. The suit filed in 2015 was therefore 12 years late. Financial hardship does not extend limitation, and proceeding would amount to the court arrogating jurisdiction.

p. 2
02

Whether the Claimant was wrongfully dismissed and entitled to reliefs

Holding

Not determined; the issue fell by the wayside once the suit was held statute barred

Reasoning

Having found the suit time barred and the court devoid of jurisdiction, the court declined to determine the merits of the dismissal or entitlement to reliefs, holding that to do so would be to arrogate itself jurisdiction through the craft of interpretation.

p. 3

Legal principles established

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  • The date of termination or dismissal is the date the cause of action accrues in employment claims
  • A court without jurisdiction must down its tools and cannot arrogate itself jurisdiction through interpretation

Court orders

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  1. 1.The Claimant's claim filed on 2nd July, 2015 is struck out for being Statute barred
  2. 2.Parties shall bear their own costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)
  • Employment ActSection 90

Cases cited (6)

  • Attorney General & another v Andrew Maina Githinji and another
    [2016] eKLR
  • Maria Machocho -v- Total (K)
    Industrial Cause No. 2 of 2012
  • Gathoni vs. Kenya Co-operative Creameries Ltd
    Civil Application No. 122 of 1981
  • Divecon Ltd v Samani
    [1995-1998] 1 EA 48
  • In Re The Matter of the Interim Independent Electoral Commission
    S.C. Constitutional Application No. 2 of 2011; [2011] eKLR
  • Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others
    S.C. Application No. 2 of 2012; [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; suit barred by Section 4(1) of the Limitation of Actions Act

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, "Salim Malakwen Komen v Attorney General & 2 others [2022] KEELRC 552 (KLR)", Case Analysis (2022). Cause No 234 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/552/eng@2022-03-10

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