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ELRCDismissedNairobi MCELRC No. E1040 of 2022 (Appeal from Ruling of 30th August 2023)· [2025] KEELRC 868 (KLR)

Omwonga v Teachers Service Commission (Employment and Labour Relations Appeal E170 of 2023) [2025] KEELRC 868 (KLR)

Employment and Labour Relations Court
14 March 2025
JKJ.W. Keli
2,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed the three-year clock to sue after dismissal runs from termination, and internal appeals or reviews don't pause it.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Nairobi against a ruling of S.A Opande (PM) delivered on 30th August 2023 in Nairobi MCELRC No. E1040 of 2022, striking out the appellant's Memorandum of Claim dated 3rd June 2022 on a preliminary objection that it was time-barred under section 90 (now section 89) of the Employment Act. The appellant, a teacher dismissed by letter dated 15th October 2014, argued that the effective date of dismissal was when he received or was communicated the outcome of internal processes, and that time stopped running during his request for review, decided on 3rd November 2021, relying on Tom Joseph Orinа v Kenya Bureau of Standards. The respondent maintained that the cause of action arose on termination. J.W. Keli, J, applying Selle v Associated Motor Boat Co and Mbogo v Shah on the appellate court's role, framed a single issue: whether the claim was statutory time-barred. Relying on binding Court of Appeal decisions - Rift Valley Railways v Musonye, G4S Security Services v Kamau and Attorney General v Andrew Maina Githinji - the court held that the three-year limitation period runs from the date of dismissal/termination with no exceptions save continuing injury, and that internal reviews, appeals or ADR mechanisms do not suspend limitation. The claim filed on 10th June 2022 was time-barred even on the appellant's own dates. The appeal was dismissed, the trial ruling upheld, and, tempering justice with mercy, no order as to costs was made in the appeal.

Key legal issues

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01

When time begins to run under section 89/90 of the Employment Act

Holding

Time runs from the date of dismissal/termination, not from the outcome of internal review or appeal processes

Reasoning

The court relied on binding Court of Appeal decisions (Rift Valley Railways; G4S Security; Andrew Maina Githinji) holding that section 90 admits no exceptions to the three-year limitation period except continuing injury or damage. Negotiations or internal reviews begun after termination do not stop time from running. The claimant's claim, filed on 10th June 2022, exceeded three years even if the alleged later communication dates were adopted.

p. 4
02

Whether the appellant's internal review process saved the claim from being time-barred

Holding

No; invoking internal review or ADR post-termination does not affect the limitation period

Reasoning

The appellant argued that time should be excluded for the period of his review request and the respondent's decision of 3rd November 2021. Following the Court of Appeal's contrary authority, the court held that an employee must bear in mind the limitation period despite pursuing internal or other mechanisms, and the claim remained time-barred even factoring in the alleged official dismissal date.

p. 6

Legal principles established

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  • Under section 89 (formerly 90) of the Employment Act, the three-year limitation period starts running on the date of dismissal/termination of employment, and there are no exceptions save for continuing injury or damage
  • A request for review or internal appeal after termination, or recourse to alternative dispute resolution, does not extend or suspend the statutory limitation period for filing employment claims

Court orders

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  1. 1.Appeal dismissed
  2. 2.Ruling of the Honourable S.A Opande (Mr.) (PM) delivered on 30th August 2023 in Nairobi MCELRC E1040 of 2022 upheld
  3. 3.No order as to costs in the appeal

Authorities

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Legislation

  • Employment Actsection 90 (now section 89, amendments of 2024)
  • Limitation of Actions Act (Cap. 22)section 4(1)
  • Constitution of KenyaArticle 159

Cases cited (6)

  • Selle v Associated Motor Boat Co
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA (at page 94)
  • Tom Joseph Orina v Kenya Bureau of Standards & another
    [2013] eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another
    [2016] eKLR
  • G4S Security Services (K) Limited v Joseph Kamau & 468 others
    [2018] KECA 827 (KLR)
  • Attorney General & another v Andrew Maina Githinji and another
    [2016] eKLR
On appeal from
Magistrates' Court (ELRC), Nairobi
Nairobi MCELRC No. E1040 of 2022
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (Employment and Labour Relations Court); appeal against ruling striking out Memorandum of Claim under section 90 (now section 89) 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, "Omwonga v Teachers Service Commission (Employment and Labour Relations Appeal E170 of 2023) [2025] KEELRC 868 (KLR)", Case Analysis (2025). Nairobi MCELRC No. E1040 of 2022 (Appeal from Ruling of 30th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/868/eng@2025-03-14

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