Marigo v Permanent Secretary, Ministry of Interior & Coordination Of National Government & 2 others (Cause 94 of 2015) [2022] KEELRC 1640 (KLR)
The bottom line
#A former civil servant lost his claim for 11 years of unpaid salaries and pension because he waited too long to sue—employment claims in Kenya must be filed within three years.
What this practically means
#Executive summary
#Key legal issues
#Whether the Cause is res judicata in view of Kisii High Court Civil Suit No. 42 of 2002
Res judicata did not bar the pension arrears head (pension accrues monthly), and the withheld salaries head was addressed under limitation rather than res judicata; the Cause was nonetheless dismissed on other grounds
The Kisii suit concerned the retirement in the public interest and damages; it succeeded and ordered payment of pension. Because pension accrues month on month, arrears after that judgment were not the same matter. The withheld salaries claim was not part of the Kisii dispute, so it was treated under limitation, not res judicata.
Limitation of the withheld salaries and allowances claim
The claim, anchored in the PSC letter of 10 August 2009, was filed on 26 March 2015, more than 3 years later, and is barred by section 90 of the Employment Act, 2007
The court held the salaries claim derived from the contractual relationship and the PSC's promise of 10 August 2009. Section 90 prescribed a 3-year limitation period. Though not raised by parties, the court raised it from the pleadings, which starkly disclosed it. The claim was therefore caught up by limitation.
Abuse of court process through parallel proceedings
The claimant abused court process by prosecuting an appeal before the PSC concurrently with the Kisii High Court suit on the same subject matter without disclosure
The claimant pursued the retirement decision before both the High Court and the PSC simultaneously. He had a duty to disclose the pending appeal to the High Court. Both proceedings succeeded, but the failure to disclose exposed the judicial process to embarrassment. The court found the parallel proceedings amounted to abuse of process.
Whether the retirement was unlawful and unconstitutional
Not unlawful; the PSC substituted retirement in the public interest with retirement on age grounds effective 1 July 2007, and no evidence showed premature retirement
The claimant had appealed his retirement in the public interest to the PSC, which on 10 August 2009 substituted it with retirement on age grounds effective 1 July 2007. The claimant's age was stated as 55 as of 1 July 2007, the prescribed retirement age. No evidence was placed before the court of retirement before the prescribed age.
Legal principles established
#- Claims for salaries and allowances arising from an employment contract must be brought within the 3-year limitation period prescribed by section 90 of the Employment Act, 2007, and a court may raise limitation on its own motion from the pleadings.
- A litigant who prosecutes parallel proceedings on the same subject matter before different fora without disclosure is abusing the court process.
Court orders
#- 1.The Cause is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (implied from the Cause; not expressly cited in the judgment excerpt)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marigo v Permanent Secretary, Ministry of Interior & Coordination Of National Government & 2 others (Cause 94 of 2015) [2022] KEELRC 1640 (KLR)", Case Analysis (2022). Cause No 94 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1640/eng@2022-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.