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ELRCStruck OutNot stated in the judgment (Memorandum of Claim dated 9th March 2023)· [2023] KEELRC 2774 (KLR)

Matiru v Judicial Service Commission (Cause E006 of 2023) [2023] KEELRC 2774 (KLR)

Employment and Labour Relations Court
3 November 2023
3,598 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a claim filed 23 years after dismissal, confirming employment claims must be filed within three years of termination.

What this practically means

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Executive summary

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The claimant, a former Judiciary employee, was dismissed from government service with effect from 1st July 1996 by a letter dated 6th November 2000 for gross misconduct, despite his criminal conviction having been quashed on appeal in December 1999. He successfully litigated in Petition No. 29 of 2012, in which Mbaru J, by judgment of 30th October 2013 and ruling of 14th November 2016, declared the dismissal wrongful and awarded him notice pay, half salary and allowances amounting to Kshs. 899,984.90, which was paid in full. He thereafter received his pension dues. In March 2023 he filed a fresh Memorandum of Claim seeking full salary and allowances up to May 2012 when he would have retired at 60, pension entitlements, general damages, lifting of the interdiction, quashing of the termination and a last pay slip. The respondent filed a preliminary objection contending the suit was statute-barred under section 90 of the Employment Act and res judicata under section 7 of the Civil Procedure Act. The court, Onesmus N Makau J, allowed the objection. It held that the cause of action accrued on 6th November 2000 when the claimant was notified of termination, making the suit filed 23 years later statute-barred and the court without jurisdiction. It further held that the same parties and substantially the same issues had been conclusively determined in Petition 29 of 2012, rendering the suit res judicata. The Memorandum of Claim dated 9th March 2023 was struck out with costs to the respondent.

Key legal issues

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01

Limitation of employment claims under section 90 of the Employment Act

Holding

The claim was statute-barred as the cause of action accrued on 6th November 2000 when the claimant was notified of termination, and the suit was filed 23 years later, well beyond the three-year limitation period.

Reasoning

The court held that a cause of action founded on employment contract accrues when the employee is notified of termination. The claimant received notification of termination on 6th November 2000. Any claim founded on the employment contract which ended 23 years earlier was statute-barred under section 90 of the Employment Act or section 4(1) of the Limitation of Actions Act, and the court therefore lacked jurisdiction to entertain it.

p. 5
02

Res judicata under section 7 of the Civil Procedure Act

Holding

The suit was res judicata as the same parties and substantially the same issues had been litigated upon and conclusively determined in Petition 29 of 2012 by Mbaru J in her judgment of 30th October 2013 and ruling of 14th November 2016.

Reasoning

The claimant had previously filed Petition 29 of 2012 seeking reinstatement or payment of salary and benefits, which was determined in his favour and the award fully settled. The new claim's issues, including salary and benefits, were substantially the same. The pension issue had also been determined in the 2016 ruling, granting liberty to pursue pension dues with the relevant authority. Raising a fresh claim would shift the goal post after the score.

p. 6
03

Applicability of the Civil Procedure Act to ELRC proceedings

Holding

Where the ELRC's procedural rules are silent, the court resorts to the Civil Procedure Act and Rules; thus section 7 on res judicata applies.

Reasoning

The respondent submitted that the Employment and Labour Relations Court Act and its Procedure Rules are silent on res judicata, so the Civil Procedure Act applies. The court agreed, noting that whenever the court encounters a lacuna in its rules, it resorts to the Civil Procedure Rules, and proceeded to apply section 7 of the Civil Procedure Act to the doctrine of res judicata.

p. 6

Legal principles established

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  • A cause of action founded on employment contract accrues on the date when an employee is notified that his/her employment has been terminated.
  • The purpose of limitation of actions is to protect defendants from stale claims, not to extinguish claims per se.
  • A party cannot raise in a fresh suit a claim connected to matters which ought to have been litigated in the earlier suit.

Court orders

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  1. 1.The preliminary objection dated 11th May 2023 is allowed
  2. 2.The Memorandum of Claim dated 9th March 2023 is struck out
  3. 3.Costs to the respondent
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Civil Procedure Act (section 7); preliminary objection under section 90 of the Employment 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, "Matiru v Judicial Service Commission (Cause E006 of 2023) [2023] KEELRC 2774 (KLR)", Case Analysis (2023). Not stated in the judgment (Memorandum of Claim dated 9th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2774/eng@2023-11-03

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