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ELRCStruck OutNot stated in excerpt (ELRC Petition, Nakuru)· [2022] KEELRC 1034 (KLR)

Samson Leteipa Ole Kimongo v Inspector General, National Police Service & 2 others [2022] KEELRC 1034 (KLR)

Employment and Labour Relations Court
20 January 2022
OMOnesmus N Makau
1,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a police officer's 19-year-late dismissal claim, confirming that missed legal deadlines remove the court's power to hear a case entirely.

What this practically means

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Executive summary

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This ELRC ruling at Nakuru disposes of a preliminary objection dated 2 November 2021 by the 2nd respondent against a petition by a former police officer dismissed on 25 February 2002. The 2nd respondent argued that the petition, though framed as a constitutional violation, was in substance an employment dispute founded on contract, filed 19 years out of time contrary to the Limitation of Actions Act and the Public Authorities Limitation of Actions Act, and that the court could not order reinstatement after three years under section 12(3)(vii) of the ELRC Act. The petitioner filed no submissions in opposition. Applying Mukisa Biscuits, Makau J held the objection raised pure points of law. The cause of action accrued on 25.2.2002; under section 3(2) of the PALA Act proceedings founded on contract against government had to be brought within three years, lapsing on 24.2.2005. The petition filed on 4.6.2021 was therefore statute barred and incompetent. The petitioner's belated appeal against dismissal was itself time barred and could not validate the suit. Consequently the court lacked jurisdiction, following the Motor Vessel Lilian S principle that a court without jurisdiction must down tools. The court upheld the objection, struck out the suit, and directed each party to bear its own costs. Judgment delivered online pursuant to Covid-19 directives with parties waiving Rule 28(3) ELRC Procedure Rules.

Key legal issues

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01

Whether the preliminary objection raises a pure point of law

Holding

It does; the time-bar point needs no ascertainment of facts and can end the suit

Reasoning

Applying Mukisa Biscuits, the court found the objection rests solely on limitation, assumed pleaded facts to be correct, and requires no evidence or exercise of discretion, thus qualifying as a pure point of law capable of terminating the suit.

p. 2
02

Whether the petition is time barred

Holding

Yes, under section 3(2) of the PALA Act; cause of action accrued 25.2.2002 and suit was filed 4.6.2021

Reasoning

The suit against government officers and organs founded on a contract of service was required to be brought within three years of the dismissal. Filed 19 years late, the petition was incompetent. The petitioner's delayed appeal was itself time barred and could not revive the claim.

p. 2
03

Whether the court has jurisdiction to entertain the petition

Holding

No; limitation extinguished the court's mandate

Reasoning

Following Lilian S and Razo Limited, the court held that once the limitation period lapses the court's mandate to receive and entertain the proceedings is extinguished, leaving no basis for continuing proceedings and no discretion to grant relief.

p. 3

Legal principles established

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  • Lapse of the limitation period extinguishes the court's jurisdiction over the cause of action
  • A court without jurisdiction must down tools immediately

Court orders

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  1. 1.Upheld the preliminary objection by the 2nd respondent
  2. 2.Struck out the suit
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Limitation of Actions Actsection 4(1)(a)
  • Employment and Labour Relations Court Actsection 12(3)(vii)
  • Employment Actsection 3(2)
  • Public Authorities Limitation of Actions Actsection 3(2)
  • ELRC Procedure RulesRule 28(3)

Cases cited (10)

  • Benjamin Wachira Ndiithi v Public Service Commission & another
    [2014] eKLR
  • Johnstone Ogechi Mose v National Police Service Commission
    [2017] eKLR
  • Danieal Kago Gachanja v Inspector General & 2 others
    [2020] eKLR
  • Bosire Ongero v Royal Media Services
    [2015] eKLR
  • The Owners of the "MV Lillian S" v Caltex Oil Kenya Limited
    [1989] eKLR
  • Ann Waceke Makori & 2 others v Faulu Microfinance Bank Limited
    [2021] eKLR
  • Yusto Opiyo Onyango v National Police Service Commission & 2 Others
    [2018] eKLR
  • Mukisa Biscuits v Westend Distributor Ltd
    [1969] EA 696
  • Anaclet Kalia Musau –vs Attorney General & 2 others
    [2020] eKLR
  • Bakery Confectionery food Manufacturing and allied workers union –vs Razo Limited
    [2021] eKLR
Jurisdiction invoked
Article 162(2) Constitution / Employment and Labour Relations Court Act, section 12

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Samson Leteipa Ole Kimongo v Inspector General, National Police Service & 2 others [2022] KEELRC 1034 (KLR)", Case Analysis (2022). Not stated in excerpt (ELRC Petition, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1034/eng@2022-01-20

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