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ELRCStruck Outnot stated in judgment text provided· [2024] KEELRC 1454 (KLR)

Karioki v Teachers Service Commission (Cause E600 of 2023) [2024] KEELRC 1454 (KLR)

Employment and Labour Relations Court
14 June 2024
945 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Teachers Service Commission, as Respondent, filed a Notice of Preliminary Objection dated 10th August 2023 seeking the dismissal of the Claimant's claim on temporal jurisdiction grounds, invoking Section 90 of the Employment Act (3-year limitation for employment contract claims), Section 3(2) of the Public Authorities Limitations Act, and Section 21(1) of the Teachers Service Commission Act. The Respondent argued that the Claimant's own pleading showed dismissal on 25th March 2019, yet the Claim was filed on 31st July 2023, some four years later. The Claimant countered in a Replying Affidavit sworn on 27th October 2023 that his cause of action arose on 9th March 2022, when the Review Committee's decision upholding his dismissal was communicated, placing his claim within the limitation period. The parties agreed to argue the objection on pleadings, affidavits and submissions. James Rika, Judge, held that the cause of action accrued on 25th March 2019 when the Claimant acknowledged receipt of the termination letter; his late review application did not renew or suspend the cause of action, following the Court of Appeal in Rift Valley Railways [Kenya] v Hawkins Wagunza Musonye & another [2016] eKLR. The court further observed that the Claimant's desertion from 20th October 2017 may have amounted to repudiation under the automatic theory, but the Respondent endorsed the elective theory, paying salary until March 2018. The Preliminary Objection was sustained and the Claim declined for want of temporal jurisdiction, with no order on costs.

Key legal issues

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01

Date of accrual of the cause of action in an employment claim

Holding

The cause of action arose on 25th March 2019, the date of dismissal and acknowledgement of receipt of the termination letter, not on the date of the Review Committee decision

Reasoning

The court found that the date of dismissal was not contested. The Claimant acknowledged receipt of the dismissal decision. His late review application was made as an ex-Employee and did not renew the cause of action. Post-termination dispute-resolution mechanisms do not suspend accrual, following the Court of Appeal in Rift Valley Railways v Hawkins Wagunza Musonye.

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02

Effect of a late application for review on limitation

Holding

The late review application did not suspend or renew the limitation period

Reasoning

Relying on the Court of Appeal's decision in Rift Valley Railways [Kenya] v Hawkins Wagunza Musonye & another, the court held that consultations, negotiations, conciliation and other dispute resolution mechanisms invoked after termination do not suspend the date the cause of action arises on termination. To hold otherwise would require judicial craft and innovation.

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03

Automatic versus elective theory of termination

Holding

Although the Claimant's desertion from 20th October 2017 arguably constituted repudiation terminating the contract automatically, the Respondent endorsed the elective theory and continued paying salary until March 2018, so formal termination occurred on dismissal on 25th March 2019

Reasoning

The court observed that the Claimant ceased teaching in October 2017, which was a fundamental breach amounting to repudiation. Under the automatic theory termination takes effect without acceptance. However, the Respondent appears to have endorsed the elective theory, continuing salary until March 2018, so the formal cessation of employment was the dismissal of 25th March 2019.

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Legal principles established

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  • Post-termination review applications do not renew or suspend the accrual of the cause of action in employment claims
  • Under the automatic theory of termination, express repudiation of a fundamental term terminates the contract without acceptance by the other party

Court orders

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  1. 1.The Preliminary Objection is sustained, and the Claim declined for want of temporal jurisdiction.
  2. 2.No order on the costs.
Jurisdiction invoked
Section 90 of the Employment Act; Section 3(2) of the Public Authorities Limitations Act; Section 21(1) of the Teachers Service Commission Act - temporal jurisdiction over employment claims

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, "Karioki v Teachers Service Commission (Cause E600 of 2023) [2024] KEELRC 1454 (KLR)", Case Analysis (2024). not stated in judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1454/eng@2024-06-14

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