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ELRCDismissedKangundo MCELRC Appeal E005/2021 (memorandum of appeal dated 20th December 2024)· [2025] KEELRC 2510 (KLR)

Mbithi v Board of Management Tala High School (Appeal E367 of 2024) [2025] KEELRC 2510 (KLR)

Employment and Labour Relations Court
18 September 2025
6,324 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed an appeal for KSh 2.8 million in terminal dues because the worker filed his claim almost three years too late.

What this practically means

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Executive summary

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The appellant, a former employee of the respondent, appealed against the judgment of Hon. D.N. Sure (SPM) delivered on 26th November 2024 in Kangundo MCELRC/E005/2021, which dismissed his claim for terminal dues totalling Kshs. 2,807,351.70 (underpayments, leave, notice pay, gratuity and NSSF contributions over 25 years of service) as time-barred under section 90 (now 89) of the Employment Act. The appellant argued that the trial magistrate erred in overruling a prior ruling of Hon. Martha Opanga (SRM) of 25th January 2022 that the claim was not time-barred, and that documents supporting the claim were on record. The respondent maintained the claim was a continuing injury that had to be filed within 12 months of cessation. The court found that Hon. Opanga had declined jurisdiction and her limitation finding was not binding on the trial magistrate, who heard the matter on merit as directed on appeal by Justice Ndolo. Applying the Court of Appeal's decision in The German School Society v Ohany and M.R. Gupta, the court held the underpayment claims were continuing injuries that had to be filed within 12 months of the termination of the contract on 1st May 2018; the claim filed on 30th April 2021 was time-barred. Claims under the permanent contract (1995-2006) expired three years after retirement, and pension claims belonged under the retirement benefits framework. The NSSF claim ought to have been pursued with the regulator. The appeal was dismissed, the trial court's judgment upheld, with no order as to costs on appeal in view of the appellant's long service.

Key legal issues

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01

Whether the trial magistrate erred by overruling Hon. Opanga's ruling that the suit was not time-barred

Holding

No error. Hon. Opanga had found she had no jurisdiction and declined to hear the matter on merit, so her finding that the claims were not time-barred could not bind the trial magistrate who heard the matter on merit as ordered on appeal by Justice Ndolo; the limitation issue was not the subject of that appeal

Reasoning

The court found Hon. Opanga declined jurisdiction and her ruling was successfully appealed, with Justice Ndolo holding she erred in finding no jurisdiction. The time-limitation point was not appealed and was not addressed on continuing injury. The trial magistrate, hearing the matter on merit, was therefore free to determine limitation afresh.

p. 8
02

Whether the claims for underpayment, leave and backpay were continuing injuries subject to the 12-month limitation

Holding

Yes. Applying the Court of Appeal's decision in The German School Society & another v Ohany & another, a fresh cause of action arose monthly, but claims had to be filed within 12 months of cessation of the injury; the contract terminated on 1st May 2018 and the claim filed 30th April 2021 was time-barred

Reasoning

The court adopted the binding Court of Appeal authority and M.R. Gupta's 'continuing wrong' reasoning. Underpayment claims were continuing injuries governed by section 89's 12-month post-cessation limit. The 3-year period in section 89 did not apply to them, and the claim filed nearly three years after termination was out of time.

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Whether claims under the permanent employment (1995-2006) were recoverable

Holding

No. They expired three years after formal retirement on 12th May 2006, and pension claims belong under the Retirement Benefits Act framework

Reasoning

The court upheld the trial court's reliance on Kitsapha v Teachers Service Commission, which held that pension claims must be addressed under the retirement benefits framework, and found the pre-retirement claims had expired by limitation long before the 2021 filing.

p. 9
04

Whether claims under the post-retirement fixed-term contracts (2006-2018) were recoverable

Holding

Only claims under the last contract of 1st October 2016 were valid in principle, but the underpayment claims were continuing injuries time-barred 12 months after the 1st May 2018 termination

Reasoning

Applying Mbatia v Kirinyaga Water & Sanitation Company, acceptance of the fixed-term contract extinguished prior terms and the court cannot rewrite the contract. Even extending this, the underpayment claims were continuing injuries barred under section 89, and NSSF claims lay with the regulator.

p. 10

Legal principles established

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  • A claim premised on a continuing injury must be filed within 12 months after cessation of the injury as provided by section 90 (now 89) of the Employment Act
  • A fresh cause of action arises each month an employee is paid salary wrongly computed, but arrears beyond the limitation period are not recoverable
  • Acceptance of a new fixed-term contract extinguishes the previous contract, and claims under a fixed-term contract terminate on the sunset date and must be brought under the contract's terms
  • A first appellate court must re-evaluate the evidence and reach its own conclusion

Court orders

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  1. 1.The appeal is dismissed as without merit
  2. 2.The judgment and Decree of the Hon. D.N. Sure (SPM) delivered on 26th November 2024 in Kangundo MCELRC/E005/2021 is upheld
  3. 3.No order as to costs on appeal
On appeal from
Principal Magistrate's Court, Kangundo (Employment and Labour Relations)
CMEL NO. E005 of 2021 (Kangundo MCELRC/E005/2021)
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment in an employment claim (memorandum of appeal under the applicable employment appeal provisions)

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, "Mbithi v Board of Management Tala High School (Appeal E367 of 2024) [2025] KEELRC 2510 (KLR)", Case Analysis (2025). Kangundo MCELRC Appeal E005/2021 (memorandum of appeal dated 20th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2510/eng@2025-09-18

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