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ELRCDismissedELRC Cause No. 47 of 2015 (formerly Kisii High Court Civil Suit No. 301 of 2010)· [2022] KEELRC 878 (KLR)

Gerald Ratemo Mabeya v Attroney General & another [2022] KEELRC 878 (KLR)

Employment and Labour Relations Court of Kenya
3 February 2022
831 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 former higher Clerical Officer employed at the District Commissioner's Office in Kisumu between 1987 and 1991, was arrested, charged and convicted in 1991 on counts including forgery, fraudulent false accounting and uttering a false document. On appeal, the conviction was set aside and a retrial ordered, which never took off. The Claimant sued for salary arrears and pension, contending he was never subjected to a disciplinary process and had done nothing wrong. The suit was originally filed in the High Court at Kisii as Civil Suit No. 301 of 2010 and transferred to the ELRC at Kisumu in November 2015. After being dismissed twice for non-attendance and reinstated, it proceeded to hearing on 16th November 2021. The Respondent filed a defence but did not participate in the hearing, raising limitation under Section 3 of the Public Authorities Limitations Act and asserting the Claimant's entitlement to nothing. The court framed two issues: whether the suit was statute barred, and whether the Claimant was entitled to the reliefs sought. Holding that the cause of action crystallised when the conviction was set aside - on or before October 2004, as indicated by the notice of intention to sue - and that the 2010 filing was about six years outside the three-year limitation period under Section 3 of the Public Authorities Limitations Act read with Section 90 of the Employment Act, the court dismissed the suit as time barred and, because the Respondent did not participate in the hearing, made no orders as to 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 or before October 2004 and the suit was filed in 2010, about six years later, well beyond the three-year limitation period

Reasoning

The court held that limitation runs from when the cause of action accrued. Since the claim was premised on the setting aside of the Claimant's criminal conviction, the cause of action crystallised when the conviction was set aside. Although the exact date of the setting aside was not evident from the documents, the notice of intention to sue dated 18th October 2004 pointed to the period around which the conviction was set aside, making the 2010 filing far outside the three-year window.

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02

Whether the Claimant is entitled to the reliefs sought (salary arrears and pension)

Holding

The Claimant is not entitled to the reliefs sought because the suit was dismissed as time barred

Reasoning

The Claimant sought salary arrears and pension, alleging he was never subjected to a disciplinary process and that his conviction was set aside with no retrial taking place. The Respondent did not participate in the hearing but filed a defence raising limitation. Since the suit was found to be time barred, the court did not reach the merits of the entitlement question and dismissed the suit.

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Legal principles established

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  • Where an employee's claim is premised on the setting aside of a criminal conviction, the cause of action crystallises when the conviction was set aside
  • Proceedings founded on contract against the Government must be brought within three years of accrual under Section 3 of the Public Authorities Limitations Act, read with Section 90 of the Employment Act for employment claims

Court orders

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  1. 1.The suit is dismissed as time barred
  2. 2.No orders as to costs

Authorities

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Legislation

  • Public Authorities Limitations ActSection 3(2)
  • Employment Act, 2007Section 90
Jurisdiction invoked
Transferred from the High Court at Kisii to the Employment and Labour Relations Court pursuant to its employment jurisdiction (Employment and Labour Relations Court Act)

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, "Gerald Ratemo Mabeya v Attroney General & another [2022] KEELRC 878 (KLR)", Case Analysis (2022). ELRC Cause No. 47 of 2015 (formerly Kisii High Court Civil Suit No. 301 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/878/eng@2022-02-03

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