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ELRCStruck OutNot stated in judgment (memorandum of claim dated 1st July 2024, filed 3rd July 2024)

Shitoshe v The Board of Management Shivanga Secondary School & another (Cause E023 of 2024) [2024] KEELRC 2222 (KLR)

Employment and Labour Relations Court
18 September 2024
2,578 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a Kshs 4.7 million claim filed nearly seven years late, confirming the three-year filing deadline is absolute and conciliation does not pause it.

What this practically means

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Executive summary

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The Claimant, a former teacher employed in 2010 and verbally dismissed in December 2014, filed a memorandum of claim on 3rd July 2024 seeking Kshs. 4,725,000.00, costs and interest, alleging the Respondents unlawfully withheld his pay and house allowance for 60 months. The Respondents filed a Notice of Preliminary Objection dated 25th July 2024 contending the suit was statute barred under section 4(1) of the Limitation of Actions Act and section 90 (now section 89) of the Employment Act, canvassed by written submissions by Senior State Counsel Adwar Jette; the Claimant filed none. Justice J.W. Keli framed the single issue as whether the claim was time barred. The court held that section 89 is framed in mandatory terms, that employment claims must be filed within three years of termination and continuing injury claims within twelve months of cessation, and that the court has no jurisdiction to extend time. Relying on Michira v Aegis Kenya Ltd, Monicah Wanjiku Kanyingi, Maxwell Sifuna v Teachers Service Commission and the Court of Appeal's continuing-wrong doctrine in The German School Society v Ohany, the court held that conciliation efforts did not stop time running. Even if the withheld pay claims were a continuing injury, they should have been filed by December 2015. The claim filed on 3rd July 2024 was over six years and seven months late. The preliminary objection was upheld, the memorandum of claim dismissed as statute barred, with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit herein is statute barred pursuant to the provisions of section 90 of the Employment Act Cap 226
  2. 2.Whether the limitation period can be extended in Employment and Labour Relations matters
  3. 3.Whether this Honourable court has the jurisdiction to hear, admit and determine this suit

Key legal issues

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01

Whether the claim was statute barred under section 89 (formerly section 90) of the Employment Act

Holding

Yes - claim filed over six years and seven months after the December 2014 termination, far outside the three-year period

Reasoning

The court found it undisputed that the claim was filed outside three years post termination. Section 89 is framed in mandatory terms and denies the court jurisdiction to extend time. Even treating the withheld pay and house allowance claims as continuing injury, they had to be filed within 12 months of cessation of employment, which was not done.

p. 5
02

Whether prior conciliation efforts at the Ministry of Labour stopped the limitation clock

Holding

No - conciliation does not suspend limitation under section 90/89

Reasoning

Relying on Michira v Aegis Kenya Ltd and Monicah Wanjiku Kanyingi, the court held that parties should file suit within time and then seek conciliation while the matter is pending in court. The claimant's conciliation correspondence, ending in December 2018, did not avail him against a plea of limitation.

p. 4
03

Whether the withheld pay/house allowance claim qualified as a continuing injury

Holding

Even if it did, the 12-month post-cessation window expired unheeded

Reasoning

Borrowing from the German School Society v Ohany continuing-wrong doctrine, the court accepted arguendo that back pay could be a continuing injury, but held that such a claim must still be filed within 12 months after cessation of the injury, i.e. within 12 months of the December 2014 termination, which the claimant failed to do.

p. 6

Legal principles established

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  • Section 89 of the Employment Act is mandatory; employment claims must be filed within 3 years of termination and the court has no jurisdiction to extend time
  • The cause of action for unfair termination accrues on termination; continuing injury claims must be brought within 12 months of cessation
  • Conciliation does not stop time running under section 90 of the Employment Act

Court orders

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  1. 1.The Notice of Preliminary Objection dated 25th July 2024 is upheld
  2. 2.The memorandum of claim dated 1st July 2024 is dismissed for being statute time barred pursuant to section 89 (formerly section 90) of the Employment Act (Revised 2024)
  3. 3.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Employment and Labour Relations Act, challenged via section 89 (formerly section 90) Employment Act limitation

Relief refused

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Claim for Kshs. 4,725,000.00, costs and interest

Claim filed outside the mandatory three-year limitation period under section 89 of the Employment Act; court denied jurisdiction

p. 6

Costs

The Court makes no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot, the Notice of Preliminary Objection dated 25th July 2024 is upheld and the memorandum of claim dated 1st July 2024 dismissed for being statute time barred pursuant to the provisions of section 89 (formerly section 90) of the Employment Act (Revised 2024).
p. 6Final orders - dismissal for limitation
The Court makes no order as to costs.
p. 6Costs
This Court is denied jurisdiction to extend time to file suits not lodged with the court within 3 years from the date the cause of action arose.
p. 5No jurisdiction to extend limitation under section 89
The provision of Section 90, Employment Act, 2007 on limitation of time is a juridical issue and not discretional. The court has no choice but to down its tools in the matter.
p. 4Limitation as jurisdictional (Maxwell Sifuna, approved)

Issues in the judgment

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minor

Internal inconsistency: the judgment states in one passage that 'the termination having occurred in December 2017' although it repeatedly finds termination was in December 2014

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, "Shitoshe v The Board of Management Shivanga Secondary School & another (Cause E023 of 2024) [2024] KEELRC 2222 (KLR)", Case Analysis (2024). Not stated in judgment (memorandum of claim dated 1st July 2024, filed 3rd July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2222/eng@2024-09-18

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