Emmanuel Cheluget Lelgo v Rural Electrification and Renewable Energy Corporation

4. The Claimant filed written submissions dated 4 th May 2026 in opposition to the Preliminary Objection. The Respondent did not file submissions in support of its Objection as at the time of writing this ruling. The Claimant’s Submissions 7. The Claimant Respondent states with that effect he was employed by the from 26th January 2009 and eventually rose to the position of Principal Finance Officer on permanent and pensionable terms. 8. It is his position that on 3rd August 2022, the Respondent issued him with a notice to show cause on allegations relating to irregular payment invoices and payment certificates for projects which allegedly did not exist. The Claimant avers that he responded to the notice and subsequently attended a disciplinary hearing. 9. The Claimant contends that following the disciplinary hearing, the Respondent issued a letter dated 6 th September 2022 summarily dismissing him from service. 10. The Claimant avers that he exercised his contractual right of appeal against the dismissal by a letter dated 17 th October 2022, and that the Respondent communicated its final decision disallowing the appeal and upholding the dismissal by a letter dated 6th December 2022. 11. The Claimant submits that the cause of action did not accrue on the date of summary dismissal, 6th September 2 |RULING CAUSE NO. E1211 OF 2025

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2022, but on 6th December 2022, when the Respondent communicated the final outcome of his internal appeal. He contends that since the Respondent’s disciplinary framework provided for an internal appeal, and the Claimant exercised that right on 17th October 2022, the initial dismissal decision was not final until the appeal was determined. Consequently, the three-year limitation period commenced on 6th December 2022. 12. The Claimant further argues that determining the accrual date requires examination of contested facts concerning the internal appeal and the Respondent’s disciplinary framework, making the issue unsuitable for determination as a preliminary objection. The Claimant relies on the principles in Letang v Cooper and Drummond-Jackson v British Medical Association, as well as the Court of Appeal decision in Francis Kimani Kiige v National Hospital Insurance Fund, Civil Appeal No. 657 of 2019, which the Claimant asserts is directly applicable. 13. The Claimant relies principally on the Court of Appeal decision in Francis Kimani Kiige v National Hospital Insurance Fund, Civil Appeal No. 657 of 2019, delivered on 20th February 2026, where the Court held that where an employee has a contractual right of internal appeal, the initial dismissal remains tentative until the appeal is either waived or exhausted. He contends that by this precedent, the cause of action accrues only when the final decision on the appeal is communicated. 3 |RULING CAUSE NO. E1211 OF 2025

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14. Further applying that principle, the Claimant argues that although he was summarily dismissed on 6th September 2022, he exercised his contractual right of appeal on 17th October 2022, and the Respondent communicated the final decision on 6th December 2022; hence, the cause of action accrued on 6th December 2022, making the suit filed on 4th December 2025 timely under the three-year limitation period in Section 89 of the Employment Act. 15. The Claimant further submits that the limitation issue cannot properly be determined by preliminary objection because it involves contested facts concerning the disciplinary and appeal process. He distinguishes Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR), which the Respondent relies upon, on the basis that the Court of Appeal subsequently addressed the issue directly in Francis Kimani Kiige. The Claimant also argues, in the alternative, that limitation generally bars the remedy rather than extinguishing the underlying right, relying on Iga v Makerere University [1972] EA 65 and Dhanesvar v Mehta v Manilal M. Shah [1965] EA 321. 16. Accordingly, the Claimant urges the Court to dismiss the Preliminary Objection with costs, find that the cause of action accrued on 6th December 2022 and that the suit was filed within time, and direct that the matter proceed to hearing on its merits. Analysis and Determination 4 |RULING CAUSE NO. E1211 OF 2025

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17. I have considered the Objection and the Claimant’s submissions. The sole issue for determination is whether the Claimant’s suit is statute-barred under Section 89 of the Employment Act, 2007. 18. Section 89 provides that:“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act, 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…” 19. It is evident by the foregoing provision that the limitation imposed by Section 89 is mandatory. The Court of Appeal has repeatedly held that an employment claim founded on termination must ordinarily be brought within three years of the act complained of. In Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR), the Court emphasized that Section 90 (now 89) was deliberately enacted to impose a peremptory limitation period on employment claims. 20.The first question for this court, therefore, is when the cause of action accrued. Ordinarily, in a claim challenging termination of employment, the cause of action accrues when the employee is notified of the termination. In Wariahe v Teachers 5 |RULING CAUSE NO. E1211 OF 2025 Service Commission [2023]

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KEELRC 2777 (KLR), the Court held that an internal review or appeal does not ordinarily stop time from running under Section 90. 21.The Court of Appeal has, however, now authoritatively addressed the precise question of the effect of a contractual internal right of appeal upon accrual of the cause of action in Francis Kimani Kiige v National Hospital Insurance Fund [2026] KECA 309 (KLR), in a judgment delivered on 20th February 2026. 22.The facts in Kiige are materially relevant to the present matter. The appellant had been terminated, and the termination letter expressly afforded him a right of appeal. He exercised that right within the prescribed period, but the employer delayed in determining the appeal. The ELRC held that the appeal process did not defer limitation and consequently found the claim time-barred. The Court of Appeal reversed that finding by drawing an important distinction between an employee merely choosing to pursue some other administrative or extraneous process and an employee exercising a contractual right of appeal embedded in the employment relationship. The Court held that where the disciplinary code forms part of the employee's terms and conditions of service, the right of appeal is itself contractual. In those circumstances, the initial termination is tentative until the appeal is either waived or exhausted. The Court therefore held that, until 6 |RULING CAUSE NO. E1211 OF 2025

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that point, no final grievance exists to found the cause of action. 23.The present case falls squarely within the principle in Kiige. The Claimant’s position is that he was dismissed on 6th September 2022, exercised his contractual right of appeal on 17th October 2022, and that the Respondent finally rejected the appeal on 6th December 2022. The Respondent has not controverted those assertions in any way. 24.It then follows that the Respondent's contention that time necessarily commenced on 6th September 2022 cannot, in view of Kiige, be sustained merely because that was the date appearing on the dismissal letter. 25.Further, the factual chronology pleaded by the Claimant is not in dispute for purposes of this Preliminary Objection. The Claimant states that the dismissal occurred on 6th September 2022, the appeal was lodged on 17th October 2022, and the final decision on the appeal was communicated on 6th December 2022. The suit was then filed on 4th December 2025. 26.By the foregoing chronology of events, it is evident that the cause of action accrued on 6th December 2022, when the final decision rejecting the appeal was communicated. There is therefore no doubt that the suit filed on 4th December 2025 was instituted just within the three year period prescribed by Section 89 of the Employment Act. 7 |RULING CAUSE NO. E1211 OF 2025

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27.I accordingly find and hold that the Preliminary Objection dated 18th March 2026 is devoid of merit, and is hereby dismissed. 28.Costs shall be in the cause. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. C. N. BAARI JUDGE Appearance: N/A for the Claimant Mr. Kipyegon present for the Respondent Ms. Esther S -C/A 8 |RULING CAUSE NO. E1211 OF 2025

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