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ELRCDismissed· [2023] KEELRC 2777 (KLR)

Wariahe v Teachers Service Commission (Employment and Labour Relations Petition E011 of 2023) [2023] KEELRC 2777 (KLR)

Employment and Labour Relations Court
3 November 2023
OMOnsemus N Makau
1,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a teacher's challenge to his dismissal because he filed suit more than three years after receiving his termination letter.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nyeri (Makau J) determines a preliminary objection by the Respondent, the Teachers Service Commission, that the Petitioner's constitutional petition challenging his dismissal as a teacher was time barred under section 90 of the Employment Act. The Petitioner, dismissed on 21st March 2019 following disciplinary proceedings for alleged sexual harassment, pursued an internal appeal which was decided on 5th June 2020, and filed his petition on 14th June 2023 seeking declarations that the interdiction and dismissal violated Articles 41, 47 and 50 of the Constitution, reinstatement, prohibition and one year's salary as compensation. The Petitioner argued that time ran from the appeal decision of 5th June 2020 and that the suit was filed within three years. The Respondent contended that the cause of action accrued on the date of dismissal and lapsed on 21st March 2022. The court held that a cause of action in employment arises when the employee is notified of termination, and that time never stops running by reason of an internal appeal process; the Petitioner still had almost two years left when the appeal was decided but slept on his rights. Following David Ngugi Waweru and Beatrice Kahai Adagala, the court held that section 90 is mandatory and the limitation period cannot be extended in contractual matters. The preliminary objection was allowed and the petition dismissed with costs.

Key legal issues

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01

Whether the petition, filed on 14th June 2023, was time barred under section 90 of the Employment Act

Holding

The petition was statute barred. The cause of action accrued on 21st March 2019 when the petitioner received the dismissal letter; the limitation period lapsed on 21st March 2022, and the internal appeal concluded well before then.

Reasoning

Section 90 requires employment claims to be filed within three years of the act complained of. The court held that accrual occurs upon notification of termination, not upon conclusion of an internal appeal. The petitioner received his dismissal letter on 21st March 2019 and the appeal decision on 5th June 2020, still leaving almost two years to file. His delay extinguished the court's jurisdiction, which cannot be extended in contractual matters.

p. 4
02

Whether the pendency of the internal appeal process suspended the running of the limitation period

Holding

No. Time does not stop running because of an internal appeal process.

Reasoning

Relying on the Court of Appeal in David Ngugi Waweru v Attorney General, the court held that pursuing an appellate disciplinary process is a calculated risk that does not toll limitation. No law barred the petitioner from filing suit while the internal process was pending had the employer delayed unreasonably. The doctrine-of-exhaustion authorities cited by the petitioner did not assist on limitation.

p. 3
03

Whether the court could extend the limitation period

Holding

The court cannot extend time to sue under a contract; section 90 is in mandatory terms.

Reasoning

Following Beatrice Kahai Adagala v Postal Corporation of Kenya and Divecon v Samani, the court held that the limitation period in employment contractual claims is never extended. Once the statutory period lapses, the court's jurisdiction over the cause of action is extinguished and the claim must fail regardless of the merits or sympathy for the claimant.

p. 4

Legal principles established

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  • A cause of action founded on employment or contract of service arises when the employee is notified that his/her employment has been terminated; internal appeals do not stop the limitation period running
  • Pursuit of an internal appeal mechanism does not toll the statutory limitation period; an employee who delays beyond the three-year period loses the right to sue
  • The court has no power to extend time to sue on a contract of service; section 90 of the Employment Act is mandatory

Court orders

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  1. 1.The Preliminary Objection by the Respondent is allowed
  2. 2.The petition is dismissed with costs

Authorities

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Legislation

  • Employment Actsection 90
  • Constitution of Kenya, 2010Articles 41(1), 47(1) and (2), 50(2)(o)
  • Limitation of Actions Actsection 4(1)
  • Teachers Service Commission Code of Regulations for Teachers, 2015Regulation 159

Cases cited (10)

  • Benjamin Wachira Ndathi v Public Service Commission
    [2014] eKLR
  • Divecon v Samani
    [1995-1998] 1 EA 48
  • Hilaron Mwabolo v Kenya Commercial Bank
    [2013] eKLR
  • Fred Mudave Gogi v G4S Security Services (K) Ltd
    [2014] eKLR
  • Attorney General v Andrew Maina & Another
    [2016] eKLR
  • D.T Dobie Company Kenya Limited v Muchina
    1982 KLR 1
  • Speaker of the National Assembly v Karume
    (1992) KLR
  • Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 Others
    (2015) eKLR
  • David Ngugi Waweru v Attorney General & another
    [2017] eKLR
  • Beatrice Kahai Adagala v The Postal Corporation of Kenya
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations); question of limitation 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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Later judgments citing this (6)

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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, "Wariahe v Teachers Service Commission (Employment and Labour Relations Petition E011 of 2023) [2023] KEELRC 2777 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2777/eng@2023-11-03

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