Mbithi v Board of Management Tala High School (Appeal E367 of 2024) [2025] KEELRC 2510 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the trial magistrate erred by overruling Hon. Opanga's ruling that the suit was not time-barred
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
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.
Whether the claims for underpayment, leave and backpay were continuing injuries subject to the 12-month limitation
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
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.
Whether claims under the permanent employment (1995-2006) were recoverable
No. They expired three years after formal retirement on 12th May 2006, and pension claims belong under the Retirement Benefits Act framework
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.
Whether claims under the post-retirement fixed-term contracts (2006-2018) were recoverable
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed as without merit
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.