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ELRCStruck OutNot stated in judgment· [2023] KEELRC 354 (KLR)

Mola v National Government Constituencies Development Fund Board (Cause 42 of 2022) [2023] KEELRC 354 (KLR)

Employment and Labour Relations Court
15 February 2023
RSRADIDO STEPHEN
758 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employees have only three years from dismissal to sue for unfair termination; internal appeals do not pause that deadline.

What this practically means

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Executive summary

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The Claimant was dismissed by letter dated 18 December 2018 and lodged an internal appeal, whose unsuccessful outcome was communicated to him on or around 26 January 2022. He sued on 27 September 2022 alleging unfair termination of employment and breach of contract. The Respondent raised a Preliminary Objection that the claim was time-barred under section 90 of the Employment Act, which prescribes three years from the date the cause of action accrued. The sole question the court framed was whether time stopped running while the Claimant's appeal was pending before the Respondent. The Claimant argued he could not pursue parallel processes before the employer and the court. The court applied Court of Appeal authority - Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye, Attorney General v Andrew Maina Githinji, and David Ngugi Waweru v Attorney General - holding that time does not stop running during out-of-court negotiations, internal disciplinary or appellate processes, and that an employee who pursues such processes instead of filing suit does so at his own peril. Upholding the Preliminary Objection, the court struck out the Cause for want of jurisdiction. Because the Respondent had not filed a Response to the Memorandum of Claim, each party was ordered to bear its own costs.

Key legal issues

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01

Whether pendency of an internal appeal suspends the three-year limitation period under section 90 of the Employment Act

Holding

It does not; a dismissed employee who pursues internal or alternative processes does so at his own peril

Reasoning

The court endorsed and applied Court of Appeal authority holding that ADR under section 15 of the Employment and Industrial Relations Act must be court-based, and that a cause of action accrues on dismissal, not on conclusion of internal appeal or related proceedings. Parallel internal processes do not toll statutory limitation, and pursuing them instead of filing suit within three years defeats the claim.

p. 2

Legal principles established

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  • Time prescribed under section 90 of the Employment Act does not stop running while an employee pursues internal appellate or alternative dispute resolution processes

Court orders

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  1. 1.Preliminary Objection upheld
  2. 2.The Cause struck out for want of jurisdiction
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment and Industrial Relations Actsection 15

Cases cited (3)

  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & Ar
    (2016) eKLR
  • Attorney General & Ar v Andrew Maina Githinji & Ar
    (2016) eKLR
  • David Ngugi Waweru v Attorney General & Ar
    (2017) eKLR
Jurisdiction invoked
Section 90 of the Employment Act (No. 11 of 2007), on limitation of employment claims

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, "Mola v National Government Constituencies Development Fund Board (Cause 42 of 2022) [2023] KEELRC 354 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/354/eng@2023-02-15

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