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ELRCOtherNot stated in judgment· [2024] KEELRC 1525 (KLR)

Kubai v Teachers Service Commission (Cause E288 of 2020) [2024] KEELRC 1525 (KLR)

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

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A dismissed teacher lost his unfair termination claim because he filed three years after dismissal, even though he had pursued an internal appeal.

What this practically means

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Executive summary

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The Claimant, a primary school teacher employed by the Respondent since 2007, was accused in 2015 of defiling and impregnating a 17-year-old student. He was interdicted on 11th January 2016, heard by a Disciplinary Committee on 24th May 2017, and summarily dismissed, receiving the dismissal letter on 16th June 2017. He appealed internally on 24th July 2017 under Section 46 of the Teachers Service Commission Act, and the appeal was determined on 21st July 2019. His Statement of Claim, seeking reinstatement, salary arrears and compensation for unfair termination, was filed on 13th July 2020. The Respondent raised a preliminary objection founded on Section 90 of the Employment Act, contending the claim was filed beyond the three-year limitation period running from the effective date of dismissal. The Court, acknowledging it had previously taken the view that time begins to run only after exhaustion of internal dispute mechanisms, followed the Court of Appeal decision in Rift Valley Railways v. Musonye & Otieno, which holds that time does not stop running because parties pursue out-of-court or internal processes. Claimants should file within Section 90 even while pursuing appeals. The Court further held it lacks power to extend the Section 90 period, and being bound by the Court of Appeal, upheld the objection, declined the claim for want of jurisdiction, and made no order on costs.

Key legal issues

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01

Commencement of the limitation period where an internal appeal exists

Holding

Time runs from the date of dismissal/communication of the decision, not from exhaustion of internal mechanisms

Reasoning

The Court held that although it had previously shared the Claimant's view that time starts after exhausting internal mechanisms, the Court of Appeal in Rift Valley Railways held that out-of-court processes do not suspend time. The Claimant should have filed his claim while pursuing his Section 46 appeal; nothing barred concurrent filing. The claim therefore went stale three years from termination.

p. 2
02

Court's power over Section 90 limitation

Holding

The Court cannot extend time under Section 90; proceeding would amount to unlawfully extending time

Reasoning

Section 90 prescribes a three-year limitation period which the Employment Act itself does not permit to be extended. Ignoring the objection would amount to the Court extending time contrary to Section 90 and the Court of Appeal's interpretation. The Court is bound by that decision, so the preliminary objection succeeds and the claim is struck out for want of jurisdiction.

p. 2

Legal principles established

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  • Time under Section 90 of the Employment Act does not stop running merely because parties are engaged in out-of-court or internal dispute resolution processes
  • This Court lacks power to extend the limitation period fixed by Section 90 of the Employment Act

Court orders

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  1. 1.The Preliminary Objection is upheld
  2. 2.The Claim is declined for want of jurisdiction under Section 90 of the Employment Act
  3. 3.No order on the costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims; objection founded on 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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Cite this brief

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Cite this brief

Caselaw, "Kubai v Teachers Service Commission (Cause E288 of 2020) [2024] KEELRC 1525 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1525/eng@2024-06-14

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