Lingai v Teachers Service Commission

2 The The Respondent submitted that the claim as filed offends the provisions of Section 89 of the Employment Act, and ought accordingly to be struck out for want of jurisdiction. 3 The Respondent submitted that Section 89 is couched in mandatory terms, providing that no civil action arising out of the Act or a contract of service may be instituted unless commenced within three years of the alleged act, neglect, or default, or, in the case of a continuing injury, within twelve months of its cessation. The Respondent quoted the provision in full, and argued that its language admits of no discretion on the part of the Court to extend the stipulated period. 4 Applying this provision to the facts pleaded, the Respondent submitted that a perusal of paragraph 7 of the Memorandum of Claim reveals that the Claimant's employment was terminated in 2010, on account of desertion of duty at the Karen Training Institute for the Deaf. 5 It is the Respondent’s submission that any claim for terminal benefits ought to have been instituted within three years of termination. Therefore, the present suit, having been filed some fifteen years after the cause of action arose, is manifestly time-barred. Page 2 of 10

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6 In fortification of this position, the Respondent relied on a line of authorities. Reliance was placed on David Muchira Mathenge v Kenya Power & Lighting Co. Ltd [2018] eKLR, where the court held that a suit filed outside the three-year window was out of time and that the doctrine of equitable estoppel could not avail the claimant. 7 The Respondent submitted that the Court’s position regarding Section 90 (now Section 89) of the Employment Act has become a banal principle in our jurisprudence, reinforcing its mandatory application as a jurisdictional limitation. It cited Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] eKLR, in which the court held: "Much as we sympathize with the appellant if that is true, we cannot help her as the law ties our hands. Section 90 of the Employment Act 2007 which we have quoted verbatim herein above, is in mandatory terms.” and *Kenya Electrical Trades & Allied Workers Union v Kenya Power & Lighting Company Ltd* [2015] eKLR, to the effect that a court has no jurisdiction to entertain a matter it has no power to hear, this being a jurisdictional question. 8 It was submitted that the instant suit Claim is time-barred, and the Court is therefore precluded from extending its jurisdiction to actions beyond its statutory authority, including any extension of the limitation period. Reliance was placed on Johnson Kazungu v Kenya Marine & Fisheries Research Institute [2021] eKLR, where the learned judge upheld the ruling in Mukisa Biscuit Page 3 of 10

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Manufacturing Co. Ltd –Versus- West End Distributors Ltd [1969] EA 696 at 701, holding that “a preliminary objection would only pass the test if the facts as pleaded are not in dispute.” 9 The Respondent further submitted that the limitation period admits of no extension in this context, citing Kenya Local Government Workers Union v Kangundo Town Council [2021] eKLR for the proposition that: “. And Josephat Ndirangu v Henkel Chemicals (EA) Ltd [2013] eKLR, where it was held that "the limitation period is never extended in matters based on contract." 10 The Respondent submitted that jurisdiction is foundational to any adjudication, and that a decision rendered without it is a nullity. Reliance was placed on Boniface Waweru Mbiyu v Mary Njeri & another [2005] eKLR: “The entry point into any Court proceeding is jurisdiction. If a Court lacking jurisdiction to hear and determine a matter overlooks that fact and determines the matter, its decision will have no legal quality and will be a nullity. Jurisdiction is the first test in the legal authority of a Court or tribunal, and its absence disqualifies the Court or tribunal from determining the question.” 11 It is the Respondent’s submission that the Claimant approached the Court fifteen years after the cause of action arose, well outside the statutory period. It relied on Kenya Civil Aviation Authority v WK & 2 others Page 4 of 10

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[2019] eKLR "As was stated by Crabbe JA in the case of Mehta v Shah [1965] EA 321 at p 330, the object of any limitation enactment is to prevent a plaintiff from prosecuting "stale claims on the one hand, and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time. "It is not to extinguish claims." 12 On this basis, the Respondent argued that the suit is a waste of the Court's time, an abuse of process, an afterthought filed in total disregard of the law on limitation of actions, and is accordingly bad in law and incurably defective. Claimant’s Submissions 13 The Claimant submitted that this Court is not divested of jurisdiction on account of limitation under Section 89 of the Employment Act, and that the preliminary objection is misconceived both in law and on the facts. 14 The Claimant submitted, in the first instance, that pension and gratuity are not mere contractual entitlements but constitute property rights protected under the Constitution. 15 Reliance was placed on Article 40(1) of the Constitution, which guarantees every person the right to acquire and own property, and Article 40(2)(b), which prohibits Page 5 of 10

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arbitrary deprivation of property by the State or any person, it being submitted that pension, once earned, becomes the lawful property of an employee incapable of arbitrary withholding or forfeiture. 16 The Claimant further invoked Article 43(1) of the Constitution, guaranteeing the right to social security, and submitted that this right extends to pension benefits, such that the Claimant's pension and gratuity rights cannot be defeated by procedural technicalities such as limitation. 17 In support, the Claimant cited Otieno v Teachers Service Commission [2024] KEELRC 1630 (KLR), where the court held that "pension already earned is a property right that cannot be taken away." He argued that this authority establishes that pension rights crystallize into enforceable proprietary interests surviving even dismissal. 18 On the accrual of the cause of action, the Claimant submitted that the Respondent's position that time began running upon his dismissal in 2010 is legally flawed, pension not being immediately payable upon dismissal but only upon attainment of the statutory retirement age. 19 It was contended that the Claimant was dismissed in 2010 at age 45, and had not then attained the mandatory retirement age of 60, which only attained retirement age in 2025, when the pension matured and became Page 6 of 10

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claimable. It was submitted that a cause of action accrues when a right becomes enforceable, such that time for limitation purposes began to run in 2025, not 2010, rendering the suit, filed in 2025, properly before the Court and not statute-barred. 20 The Claimant submitted that he attained retirement age in 2025, at which point the pension matured and became claimable, and that it is trite law that a cause of action accrues when the right in question becomes enforceable. On this basis, it was contended that time began to run in 2025, not 2010, and that the suit, filed in 2025, is properly before the Court and not statute-barred. 21 The Claimant further submitted that Section 89 of the Employment Act is inapplicable, as it governs claims arising from employment contracts, whereas the present claim concerns pension and terminal benefits, being statutory and constitutional entitlements rather than ordinary contractual claims. It was argued that pension rights are continuous and accrue over time such that their enforcement cannot be restricted by the Section 89 limitation period, and that courts have consistently held that limitation provisions should not be applied rigidly where doing so would defeat substantive justice, particularly in claims touching on constitutional rights. 22 It was submitted that Regulations 181(2) and 182 of the Code of Regulations for Teachers, which previously Page 7 of 10

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provided for forfeiture of pension and gratuity upon dismissal, have since been abolished by the Collective Bargaining Agreement of August 2025, removing the restriction barring dismissed teachers from accessing accrued pension and gratuity, with the legal effect that the Claimant is now entitled to access his accrued pension benefits, and that reliance on repealed or obsolete provisions to deny him this right is unlawful and unconstitutional. 23 On the competence of the preliminary objection, the Claimant invoked the test established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, submitting that a valid preliminary objection must raise a pure point of law. It was argued that the present objection requires including: interrogation when of disputed factual questions pension became payable, whether pension had matured, and the effect of regulatory changes. These are factual issues that cannot be properly be determined at a preliminary stage, thus, the preliminary objection accordingly fails the applicable legal threshold. 24 I have considered the averments and submissions of the parties herein. The gist of this application relates to payment of pension for the claimant herein. The respondents filed the preliminary objection alleging that the claim is time barred under section 89 of the Page 8 of 10

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employment act which for avoidance of doubt states as follows: Limitations Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof. 25 The claims considered under section 89 are in my view in relation to matters dealing with a civil action, proceedings based or arising out of this act on a contract of service. My reading of this section shows that matters relating to pension do not fall under section 89 of the Employment Act 2007. Pension claims fall under the Retirement Benefits Act (cap 197) and The Pension Act (cap 189). 26 Given that the respondent raises this preliminary objection in relation to time and a claim under the Employment Act 2007, it is my finding that the preliminary objection cannot stand nor can it be resolved without delving further into factual issues relating to pension payments. Page 9 of 10

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27 I therefore find the preliminary objection without merit and dismiss it accordingly. Costs in the cause. Dated, Signed and Delivered virtually at Nairobi this 16th Day of September, 2026. HELLEN WASILWA JUDGE Page 10 of 10

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