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ELRCStruck OutNot stated in judgment

Bernard Amoro Mutendi v Teachers Service Commission [2018] KEELRC 376 (KLR)

Employment and Labour Relations Court
6 December 2018
2,558 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan teacher's case against the Teachers Service Commission was struck out because it was filed just 17 days past the three-year legal deadline.

What this practically means

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Executive summary

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The respondent Teachers Service Commission filed a preliminary objection dated 2nd May 2017 contending that the claimant's suit, filed on 26th July 2016, was statutorily time-barred under Section 3(2) of the Public Authorities Limitation Act and Section 90 of the Employment Act, 2007, since the impugned decision to warn and retire the claimant under the 10/50 year rule was made on 2nd April 2013. The respondent urged that the suit was a nullity which stripped the court of jurisdiction, relying on the Owners of Motor Vessel Lillian S principle, Macfoy v United Africa Company and other authorities. The claimant opposed, arguing that the respondent's final decision was made on 24th April 2015 when his appeal was heard and decided, that the suit was therefore filed within three years, and that the Public Authorities Limitation Act does not apply to the Teachers Service Commission. The court framed three issues: when the cause of action accrued, the applicable law, and whether the claim was statute-barred. It agreed with the claimant that the Public Authorities Limitation Act does not apply to the respondent. It held that the cause of action arose on the date of communication of the impugned decision, the letter of 9th July 2013. The claim, filed on 26th July 2016, was thus time-barred by 17 days under Section 90 of the Employment Act, and the court lacked jurisdiction, citing Divecon v Samani and Lillian S. The preliminary objection was upheld, the claim struck out, with no orders as to costs. The judgment was signed at Nairobi on 9th November 2018 by Onyango J and delivered at Kisumu on 6th December 2018 by Nduma J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.When did the cause of action in the claim accrue?
  2. 2.What is the applicable limitation law?
  3. 3.Is the claim statute-barred?

Key legal issues

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01

Whether the Public Authorities Limitation Act applies to the Teachers Service Commission

Holding

It does not; the Act covers only proceedings against the Government and local authorities, and the Teachers Service Commission is not covered.

Reasoning

The court agreed with the claimant that Section 2 of the Public Authorities Limitation Act defines proceedings as those against the Government or a local authority. No mention is made of the Teachers Service Commission or commissions generally. The Act's long title confirms it is limited to proceedings against the Government and local authorities. The court therefore excluded that statute from the analysis.

p. 3
02

When did the cause of action accrue

Holding

The cause of action accrued on the date the impugned decision was communicated to the claimant, being 9th July 2013, not on the date of the original decision of 2nd April 2013 nor on the date the appeal was decided on 24th April 2015.

Reasoning

The court examined the memorandum of claim and found that the cause of action is the decision to warn and retire the claimant under the 10/50 year rule, which he contends was improper, illegal and wrongful. The court held that the cause of action arose on the date of communication of that decision, the letter dated 9th July 2013. The claimant's argument that the final decision was on 24th April 2015 upon appeal was not accepted as the accrual date.

p. 3
03

Whether the claim is statute-barred

Holding

Yes. Filed on 26th July 2016, the claim was time-barred by 17 days under Section 90 of the Employment Act, and the court consequently lacked jurisdiction.

Reasoning

Applying Section 90 of the Employment Act, which requires a civil action arising out of a contract of service to be commenced within three years of the act complained of, the court computed from 9th July 2013 to filing on 26th July 2016 and found the claim 17 days out of time. Relying on Divecon v Samani, the court held that limitation goes to jurisdiction and that it must down its tools. The preliminary objection succeeded and the claim was struck out.

p. 4

Legal principles established

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  • A claim under Section 90 of the Employment Act must be filed within three years of the act complained of; a claim filed after the lapse of the limitation period deprives the court of jurisdiction.
  • The cause of action in an employment claim arises on the date the decision impugned is communicated to the claimant.
  • Jurisdiction is everything; without it a court cannot make one more step.

Court orders

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  1. 1.The preliminary objection by the respondent is upheld
  2. 2.The claim herein is struck out
  3. 3.There shall be no orders for costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 12(1)(a) of the Employment and Labour Relations Court Act pursuant to Article 162(2) of the Constitution

Relief refused

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The claimant's suit (declaration that the decision to warn and retire under the 10/50 year rule was improper, reinstatement and salary arrears) in its entirety

The claim was filed more than three years after the cause of action accrued and is therefore statute-barred under Section 90 of the Employment Act, depriving the court of jurisdiction

p. 4

Costs

There shall be no orders for costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

As correctly pointed out by the claimant, the Public Authorities Limitation Act does not apply to the respondent.
p. 3Non-application of the Public Authorities Limitation Act to the Teachers Service Commission
The cause of action thus arose on the date of communication of the said decision being the letter dated 9th July 2013.
p. 3Accrual of cause of action on date of communication of decision
it is time barred by 17 days as under Section 90 of the Employment Act, the claim must be filed within 3 years.
p. 4Claim statute-barred under Section 90 of the Employment Act
The preliminary objection by the respondent must on the foregoing grounds succeed. The same is upheld with the result that the claim herein is struck out. There shall be no orders for costs.
p. 4Final orders - preliminary objection upheld, claim struck out, no costs

Issues in the judgment

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minor

The judgment records the claimant's assertion that the respondent's appeal process concluded on 24th April 2015, yet the court computed limitation from the letter of 9th July 2013 without expressly resolving the claimant's argument that the final decision was on 24th April 2015; had the court accepted that date the claim would have been within time.

minor

The letter quoted as amending the earlier decision is dated 2nd May 2013 while the decision referred to elsewhere is dated 2nd April 2013, an apparent internal inconsistency in dates.

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, "Bernard Amoro Mutendi v Teachers Service Commission [2018] KEELRC 376 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/376/eng@2018-12-06

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