Stephen Okoth v Teachers Service Commission

2. By a statement of claim dated 3rd December 2025, the Claimant sued the Respondent seeking the following reliefs:a) The Respondent be compelled to compute, declare and produce in court an account of the Claimant’s legal terminal (retirement) benefits and the schedule thereof. b) A declaration that the Respondent pay the Claimant his terminal benefits and/or Pension benefits forthwith. c) Interest on Terminal benefits and/or terminal benefits from 21/01/2010 till payment in full. d) Costs of this suit. e) Any other relief as the court may deem just to award. 1. The Respondent filed a statement of defence dated 27 th April 2026 reiterating that the Claimant was not eligible to payment of pension since he resigned before attaining the age of 50 years. However it admitted that the Claimant was only entitled to refund of his contribution to WCPS and RULING IN ELRC CAUSE NO. E1208 OF 2025. 2

page 2 of 7

NSSF which were duly processed and forwarded to the Director of Pensions and NSSF respectively for payment. 2. In addition, the Respondent averred that suit is statute barred pursuant to Section 89 of the Employment Act for being instituted 15 years from the time the cause of action arose in 2010, when the Claimant resigned. 3. Simultaneously, the Respondent filed a Notice of Preliminary Objection dated 27th April 2026 contending that the suit is statute barred pursuant to Section 89 of the Employment Act. The Objection was disposed of by written submissions. Respondent’s case 4. The Respondent submitted that the Claimants suit is based on his contract of employment and as it is subject to the limitation period of three years set out by Section 89 of the Employment Act. Therefore, It argued that since the suit was filed more than three years from the time when the cause action arose, the same is statute barred and incompetent. RULING IN ELRC CAUSE NO. E1208 OF 2025. 3

page 3 of 7

5. For emphasis, it placed reliance on the cause of G4S Security Services v. Joseph Kamau & 148 others [2018] eKLR and Rift Valley Railways (Kenya) Limited V. Hawkins Wagunza Musonye & another [2016] eKLR. 6. In addition it submitted that the judicial decisions and circulars invoked by the Claimant to bring the suit cannot operate retrospectively. It further argued that the applicable law at the time of the Claimant’s resignation was the Pension Act and the Code of Regulation for Teachers (CORT) 2005. Consequently, it urged the court to strike out the suit because it has no jurisdiction to entertain the suit out of time. Claimant’s case 7. The Claimant submitted that the Objection by the Respondent does not meet the legal threshold of a valid preliminary objection as it requires evidence to establish it. He averred that there is a factual controversy which requires evidence to establish whether the cause of action arose on 21st January 2010 or 4th August 2025 when he received the letter stating that teachers who resigned RULING IN ELRC CAUSE NO. E1208 OF 2025. 4

page 4 of 7

before 6th April 2018 are not eligible to payment of terminal benefits. 8. He submitted that the objection does not raise a pure point of law. To buttress the said view, he relied on Oraro v. Mbaja [2005] KEH3182 (KLR) Mukisa Biscuits Manufacturing Ltd v. West End Distributors, [1969] EA 696 and El Busaidy v. Commissioner of Lands & 2 others [2002] 1 KLR 508. Analysis 9. Having considered the pleadings and the submissions filed, there no dispute that the Claimant voluntarily resigned from employment on 21st January 2010 and sought for payments of his terminal benefits but the Respondent declined citing the Pensions Act and the CORT from the date of resignation to the date of filing the suit is 15 years. The claim is founded on Employment Act and Section 89 thereof provides that:“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out RULING IN ELRC CAUSE NO. E1208 OF 2025. 5

page 5 of 7

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.” 10. In view of the above provision, the suit ought have been filed on or before 21st January 2013. The same having been filed 12 years thereafter is time barred and stale pursuant to Section 89 of the Employment Act 11. In Mukisa Biscuits case, supra the court held that:“ …a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.” RULING IN ELRC CAUSE NO. E1208 OF 2025. 6

page 6 of 7

12. The pleadings before the court are clear on the chronology of events and the time span from 21 st January 2010 when the Claimant resigned to 5 th December 2025 when the suit was filed. No evidence is required to establish the delay of 12 years and therefore I hold that the suit is statute barred and the court lacks jurisdiction to entertain it. Accordingly, I uphold the Preliminary Objection and strike out the suit with costs to the Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Awino for Claimant Manyasa for Respondent RULING IN ELRC CAUSE NO. E1208 OF 2025. 7

page 7 of 7