Ritho v Teachers Service Commission (Petition E005 of 2024) [2024] KEELRC 2799 (KLR)
The bottom line
#A Kenyan court struck out a dismissed teacher's constitutional petition because he filed it more than three years after dismissal — waiting on internal appeals doesn't pause the clock.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is time barred under section 90 of the Employment Act
The cause of action arose on the date of dismissal (10th December 2020); internal review did not suspend limitation, and the petition filed in February 2024 was out of time
The court held the petition is founded on the contract of employment, so section 90's three-year limit applies. The claimant did not demonstrate that internal mechanisms bound him or exhausted more than three years. Even counting from the review dismissal on 9th March 2022, more than a year remained before limitation lapsed on 10th December 2023, so the delay was the petitioner's own fault.
Whether a constitutional framing avoids the limitation period
No - the petition was a disguised unlawful-dismissal claim and was statute barred
The court accepted the respondent's argument that the petition was a mere unlawful dismissal claim elevated to a constitutional question to defeat section 90. It found no unlimited limitation period applies where the substance of the dispute is a contractual employment claim.
Whether the petition met the Anarita Karimi Njeru pleading threshold
It did not - the petitioner only cited constitutional Articles without demonstrating how they were violated
Applying Anarita Karimi Njeru and Mumo Matemu, the court perused the petition and found it merely cited the constitutional provisions without pleading with reasonable precision the manner of infringement. The pleaded dispute was in substance unlawful termination under section 45 of the Employment Act and Article 41, with a claim for twelve months' salary.
Whether the doctrine of constitutional avoidance barred the petition
Yes - the petitioner should have pursued remedies under the Employment Act before resorting to a constitutional petition
Relying on Anthony Miano v Attorney General (Mrima J), the court held that a constitutional court should decline jurisdiction where another statutory remedy exists. The petitioner slept on his right to sue under the Employment Act until limitation lapsed, then morphed his claim into a constitutional question.
Legal principles established
#- Causes of action under a contract of service or the Employment Act must be commenced within three years, and the limitation period runs from the act complained of, not from the conclusion of internal appeal mechanisms.
- A claim of unlawful dismissal dressed as a constitutional petition to circumvent a statutory time bar will be struck out.
- Constitutional petitions must plead with reasonable precision the provisions infringed and the manner of infringement, and the doctrine of constitutional avoidance requires resort to statutory remedies first.
Court orders
#- 1.The respondent's Notice of Preliminary Objection dated 22nd May 2024 is allowed as prayed
- 2.The petition is struck out with costs to the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and constitutional claims (petition founded on contract of employment); ELRC Procedure Rules referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ritho v Teachers Service Commission (Petition E005 of 2024) [2024] KEELRC 2799 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2799/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.