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ELRCStruck OutNot expressly stated in the judgment (ELRC claim at Kisumu)· [2025] KEELRC 1271 (KLR)

Nyangongo v CEO and Seceretary Teachers Service Commission & another (Cause E077 of 2024) [2025] KEELRC 1271 (KLR)

Employment and Labour Relations Court
6 May 2025
3,936 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A teacher's six-year-old salary claim was struck out because it was filed too late and repeated an issue Kenyan courts had already decided.

What this practically means

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Executive summary

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The claimant, a teacher, sued alleging that Circular 17 of 2018 dated 27th July 2018 transferred his services and payroll to the State Department of Vocational and Technical Training, resulting in the withholding of salary from 2018, loss of CBA 2017/2021 entitlements, discriminatory promotion and transfer treatment, baggage allowance, responsibility allowance, medical cover and other losses. He sought declarations, general, exemplary and aggravated damages, special damages, twelve months' salary for constructive dismissal, salary arrears from July 2018, costs and interest. The 1st respondent, the Secretary/CEO of the Teachers Service Commission, filed a Notice of Preliminary Objection dated 12th March 2025 raising limitation under Section 89 of the Employment Act and Section 3(2) of the Public Authorities Limitation Act, res judicata under Section 7 of the Civil Procedure Act, and misjoinder of the Secretary contrary to Article 253 and the TSC Act. The court framed two issues: whether the objection met the Mukisa Biscuit threshold of a pure point of law, and whether it was merited. Holding that both limitation and res judicata go to jurisdiction, the court found the objection competent. The cause of action crystallised on 1st August 2018 with the implementation of the Circular, the continuing-injury exception was not pleaded, and the suit filed on 26th September 2024 was statute barred. The suit was also res judicata, Circular 17 of 2018 having been determined in prior suits by courts of concurrent jurisdiction. The court would also have struck out the suit against the Secretary as improperly enjoined. The suit was struck out with each party bearing their own costs.

Key legal issues

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01

Whether the Notice of Preliminary Objection met the Mukisa Biscuit threshold

Holding

It did, because it raised pure points of law (limitation and res judicata) that disposed of the suit without needing ascertainment of facts.

Reasoning

Applying Mukisa Biscuit and G4S Security Services, the court held the objection raised pure points of law implicating jurisdiction. The absence-of-response argument failed because a response was on record and the claimant had not objected to its late filing or served his amended claim.

p. 5
02

Whether the claim was statute barred under Section 89 of the Employment Act

Holding

Yes; the cause of action crystallised on 1st August 2018 upon implementation of Circular 17 of 2018, and the suit filed on 26th September 2024 was far outside the three-year limitation period.

Reasoning

The cause of action arose when the claimed entitlements crystallised upon the transfer effective 1st August 2018. Section 89 requires suits arising from contracts of service to be filed within three years, or within twelve months of cessation of a continuing injury. The claimant's alleged continuing injury was not pleaded, and the suit was filed almost six years later.

p. 6
03

Whether the suit was res judicata under Section 7 of the Civil Procedure Act

Holding

Yes; the same issues arising from Circular 17 of 2018 had been heard and determined by courts of concurrent jurisdiction.

Reasoning

The court applied the Supreme Court's John Florence elements and found that the claims premised on Circular 17 of 2018 had been determined in Nairobi ELRC Cause No. 85 of 2018 consolidated with Petition No. 97 of 2018 (Abuodha J), Nakuru ELRC Petition No. E021 of 2022 (Wasilwa J), Kisumu ELRC Petition No. 7 of 2023 and Rika J's ruling in Rose Nyambura Chege.

p. 7
04

Whether the 1st respondent was properly enjoined

Holding

No; the Secretary/CEO is not personally liable for the Commission's acts absent ultra vires conduct or bad faith.

Reasoning

Following Vincent Mariita Omao and the authorities on the TSC's corporate character, the court agreed the Secretary is merely the head of the secretariat and Accounting Officer. The court noted it would have struck out the suit against her had the suit survived the limitation and res judicata objections.

p. 7

Legal principles established

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  • A cause of action in a contract of employment arises when the employee is dismissed or terminated from employment.
  • The court has no jurisdiction to hear a statute-barred or res judicata suit.
  • Res judicata requires a former final judgment by a court of competent jurisdiction with identical parties, subject matter and cause of action.
  • The Secretary/CEO of the TSC is not personally liable for the Commission's acts, omissions or default unless the conduct is ultra vires or mala fide.

Court orders

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  1. 1.The 1st respondent's Notice of Preliminary Objection dated 12th March, 2025 is upheld as merited
  2. 2.The claimant's suit is struck out for want of jurisdiction and for being res judicata the previous decisions of the court
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over employment disputes (Articles 162(2) and 165(2) context); decision rested on limitation and res judicata as jurisdictional bars

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, "Nyangongo v CEO and Seceretary Teachers Service Commission & another (Cause E077 of 2024) [2025] KEELRC 1271 (KLR)", Case Analysis (2025). Not expressly stated in the judgment (ELRC claim at Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1271/eng@2025-05-06

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