Motende v Teachers Service Commission & another (Petition E016 of 2023) [2023] KEELRC 3033 (KLR)
The bottom line
#A teacher's unfair dismissal claim failed because he filed three years late and dressed an ordinary employment dispute as a constitutional petition.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition disclosed a constitutional question
No - the dispute was purely one of employment contract law with remedies fully provided under the Employment Act, 2007; invoking constitutional jurisdiction was needless and improper.
The court applied the test that a constitutional question requires interpretation of the Constitution rather than a statute. The cause of action lay within employment contract law and all remedies sought were available under the Employment Act. Claims of statutory violations cannot give rise to constitutional violations, so the Petition improperly invoked constitutional jurisdiction.
Whether the claim was time-barred
Yes - section 90 of the Employment Act prescribes 3 years; the Petitioner was dismissed on 9 May 2019 and should have filed by 18 May 2022 but filed on 8 June 2023.
The court held the Employment Act, not the Limitation of Actions Act, governed. The cause of action accrued on dismissal, a date well known to the Petitioner. The pending review before the Commission did not extend accrual. Filing by way of Petition was an attempt to circumvent limitation law, amounting to abuse of process.
Legal principles established
#- Claims of statutory violation do not amount to constitutional violations; where remedies exist under statute, constitutional jurisdiction is not properly invoked.
- A cause of action under section 90 of the Employment Act accrues on dismissal, and a pending internal review does not extend the limitation period.
- Invoking constitutional jurisdiction to circumvent statutory limitation is an abuse of court process.
Court orders
#- 1.The Notice of Preliminary Objection is upheld
- 2.The Petition is struck out with costs
- Jurisdiction invoked
- Constitutional jurisdiction of the High Court/ELRC invoked by the Petitioner; the court found the invocation improper as no constitutional question was raised
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kirui v Kisii University (Cause E027 of 2025) [2026] KEELRC 2447 (KLR)[2026] KEELRC 2447 (KLR)31 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Motende v Teachers Service Commission & another (Petition E016 of 2023) [2023] KEELRC 3033 (KLR)", Case Analysis (2023). Petition (ELRC, Kisumu), filed 8 June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3033/eng@2023-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.