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ELRCStruck OutCause No 1415 of 2017· [2023] KEELRC 60 (KLR)

Riungu v Attorney General & another (Cause 1415 of 2017) [2023] KEELRC 60 (KLR)

Employment and Labour Relations Court
20 January 2023
1,972 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a police officer's dismissal suit filed nearly 11 years late, ruling that limitation deadlines cannot be excused as technicalities.

What this practically means

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Executive summary

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Before the Employment and Labour Relations Court at Nairobi was a preliminary objection dated July 28, 2017 by the 1st and 2nd respondents, contending that the claimant's suit challenging his August 16, 2006 dismissal from the police force was time barred, an abuse of court process, and incompetent. The respondents argued that the suit, filed on July 19, 2017, was far outside the limitation period - the 1st respondent invoking section 90 of the Employment Act and section 4(1) of the Limitation of Actions Act, and the 2nd respondent invoking section 3(2) of the Public Authorities Limitation of Actions Act. The 2nd respondent further submitted that the claimant's criminal charge and 2011 acquittal did not suspend limitation. The claimant countered that he had diligently pursued internal mechanisms, with his last correspondence in March 2013, and urged the court to apply Article 159(2)(d) and the maxim that equity aids the vigilant. Upholding the objection, the court found the dismissal predated the Employment Act, so section 3(2) of the Public Authorities Limitation of Actions Act applied, prescribing three years for contract claims against public authorities. It held limitation is substantive and jurisdictional, not a curable technicality; that prolonged unproductive correspondence with an unresponsive employer evidenced indolence; that mandamus was available; and that criminal proceedings do not stop time running in a parallel civil cause. The suit was struck out, with each party bearing its own costs.

Key legal issues

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01

Whether the claim, filed more than 10 years after termination of employment, was statute barred

Holding

The suit was time barred under section 3(2) of the Public Authorities Limitation of Actions Act, which prescribes three years for proceedings founded on contract against the Government or a public officer

Reasoning

The claimant was dismissed on August 16, 2006; the summary dismissal predated the Employment Act's operation, so section 3(2) of the Public Authorities Limitation of Actions Act governed. The suit was filed on July 19, 2017. The claimant's internal correspondence with an unresponsive employer for over six years did not suspend time, and he had judicial review remedies (mandamus) available. His conduct was indolent.

p. 2
02

Whether pending criminal proceedings on the same facts stopped time from running

Holding

Criminal proceedings do not stop time from running on a parallel civil cause of action

Reasoning

The claimant was charged at Embu Law Courts in 2006 and acquitted in 2011, and suggested this explained his delay. The court held that criminal and civil processes are distinct with different rules of engagement, and concurrent proceedings have always been permissible; the acquittal therefore did not suspend limitation.

p. 4
03

Whether Article 159(2)(d) of the Constitution could cure the delay

Holding

No - limitation is substantive and jurisdictional, not a procedural technicality

Reasoning

The claimant invoked Article 159(2)(d) and the maxim that equity aids the vigilant. The court answered that limitation periods are not technicalities but matters of substance touching on jurisdiction; a statute-barred suit robs the court of jurisdiction to entertain it.

p. 4
04

Whether the objection was a valid preliminary objection

Holding

Yes, it was a pure point of law which, if allowed, would determine the matter fully

Reasoning

Applying Mukisa Biscuit Manufacturing Company Limited vs West End Distributors Limited, the court found that the limitation objection met the threshold of a valid preliminary objection since it raised a pure point of law capable of disposing of the entire suit.

p. 3

Legal principles established

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  • Matters of limitation of actions are substantive and jurisdictional, not procedural technicalities that can be excused under Article 159(2)(d) of the Constitution
  • In employment matters, time begins to run from the date of termination, and existence of criminal proceedings arising from the same facts does not stop time running in a civil cause

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The suit is struck out
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Limitation of Actions Actsection 4(1)
  • Public Authorities Limitation of Actions Actsection 3(2)
  • Public Authorities Limitation of Actions Actsection 2
  • Employment Act, 2007section 90
  • Constitution of Kenyaarticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Anti-Corruption and Economic Crimes Act No 3 of 2003sections 39(3)(b) as read with section 48
  • Penal Codesection 215

Cases cited (5)

  • Banking Insurance and Finance Union (K) -v- Bank of India, Industrial Court Cause no 1201 of 2012
  • Daniel Kago Gachanja v Inspector General & 2 others
    [2020] eKLR
  • Bosire Ongero v Royal Media services
    [2015] eKLR
  • Nyabuto Arambe Abusa v Kenya Power & Lighting Co Ltd
    [2015] eKLR
  • Mukisa Biscuit Manufacturing Company Limited vs West End Distributors Limited
    [1969] EA 696
Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court over employment disputes; suit founded on termination of employment

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, "Riungu v Attorney General & another (Cause 1415 of 2017) [2023] KEELRC 60 (KLR)", Case Analysis (2023). Cause No 1415 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/60/eng@2023-01-20

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