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ELRCDismissedCause No E006 of 2023· [2024] KEELRC 604 (KLR)

Waluchio v Teachers Service Commission (Cause E006 of 2023) [2024] KEELRC 604 (KLR)

Employment and Labour Relations Court
14 March 2024
2,755 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, a teacher employed on 7th May 2017 and interdicted in November 2018, filed a memorandum of claim dated 24th May 2023 seeking a declaration that his dismissal was unlawful, reinstatement, payment of dues, compensation of 12 months' salary, or in the alternative terminal benefits, plus costs. An earlier ruling dismissing the claim for want of submissions had been set aside on review. The Respondent raised a preliminary objection dated 4th July 2023 contending the suit was time-barred under section 90 of the Employment Act and that the Court lacked jurisdiction. The Court first applied the Mukisa Biscuit test and held that a plea of limitation is a pure point of law properly raised by preliminary objection. It then examined when time begins to run. Noting conflicting persuasive first-instance authorities relied on by each side, the Court held itself bound by the Court of Appeal decision in G4S Security Services (K) Limited v Joseph Kamau, that time runs from termination of the contract of service and is not suspended by conciliation, appeal or review. The Court held that termination is the cause of action for reinstatement claims and that any continuing injury claim had to be filed within one year of dismissal. The dismissal preceded 15th July 2019 and the review decision of 6th August 2021 (communicated 10th August 2021) did not arrest time; the claim filed 25th May 2023 was out of time. The preliminary objection was upheld, the claim was dismissed for want of jurisdiction, with no order as to costs.

Key legal issues

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01

Whether a plea of limitation is a proper preliminary objection

Holding

Yes - it is a pure point of law under the Mukisa Biscuit test

Reasoning

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.

p. 3
02

When time begins to run under section 90 of the Employment Act

Holding

Time runs from termination/dismissal; subsequent review, appeal or ADR does not suspend it

Reasoning

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.

p. 5
03

Whether the alleged continuing injury saved the claim

Holding

No - any continuing injury claim had to be filed within one year of dismissal

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 49
  • Limitation of Actions Act (Cap. 22)section 4(1); section 4

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Oraro v Mbaja
    (2005) eKLR
  • Samuel Otiende Lukoko v Shiners Girls High School
    (2015) eKLR
  • Andrew Maina Githinji and another v The Hon. Attorney General
  • Kenya Petroleum Workers Union v Kenya Pipeline Company Limited
    (2014) eKLR
  • Bramwel Okunda Mayienga v Teachers Service Commission
    (2018) eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 in issue)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.