Waluchio v Teachers Service Commission (Cause E006 of 2023) [2024] KEELRC 604 (KLR)
The bottom line
#A Kenyan teacher's unfair dismissal claim failed because it was filed years too late—employment claims must be filed within three years of dismissal, with no extensions.
What this practically means
#Executive summary
#Key legal issues
#Whether a plea of limitation is a proper preliminary objection
Yes - it is a pure point of law under the Mukisa Biscuit test
Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the Court held that a claim being time-barred is a point of law proper for a preliminary objection, since it assumes the facts pleaded and does not require ascertainment of facts or exercise of discretion.
When time begins to run under section 90 of the Employment Act
Time runs from termination/dismissal; subsequent review, appeal or ADR does not suspend it
Following the Court of Appeal in G4S Security Services (K) Limited v Joseph Kamau, and declining to follow conflicting persuasive first-instance decisions (Bramwel Okunda Mayienga; Andrew Maina Githinji), the Court held the cause of action accrues on termination of the contract of service. Dismissal preceded the claim filed on 25th May 2023, so the three-year period had expired.
Whether the alleged continuing injury saved the claim
No - any continuing injury claim had to be filed within one year of dismissal
The Court of Appeal in G4S held that a trial judge erred in holding claims for unpaid terminal dues had no limitation period; continuing injury claims must be filed within one year of dismissal, failing which they are time-barred. The Claimant's continuing-injury argument therefore could not salvage the claim.
Legal principles established
#- Limitation under section 90 of the Employment Act goes to jurisdiction and time runs from termination of employment; the Court has no jurisdiction to extend time under section 90.
- Termination of the employment contract is the cause of action in employment claims for reinstatement.
- A claim of continuing injury must be filed within one year of dismissal.
Court orders
#- 1.The claim dated May 24, 2023 and filed on May 25, 2023 is held to be statute time-barred under section 90 of the Employment Act and is dismissed as the Court has no jurisdiction
- 2.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 in issue)
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.
Cite this brief
#Cite this brief
Caselaw, "Waluchio v Teachers Service Commission (Cause E006 of 2023) [2024] KEELRC 604 (KLR)", Case Analysis (2024). Cause No E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/604/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.