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ELRCDismissedNot stated in judgment· [2019] KEELRC 1839 (KLR)

Joel Sila Mwema v Teachers Service Commission [2019] KEELRC 1839 (KLR)

Employment and Labour Relations Court
13 March 2019
HWHellen Wasilwa
1,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a teacher's unfair dismissal claim because he filed it five years late, past the three-year legal deadline.

What this practically means

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Executive summary

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The Claimant, a teacher, challenged his dismissal by the Respondent employer, seeking declarations that the procedure adopted was unlawful, quashing of the dismissal, reinstatement without demotion, unpaid salaries and allowances for the period of suspension, interdiction and dismissal, general damages, and costs. The Respondent raised a Preliminary Objection dated 15th May 2017, contending that the claim was statute barred under Section 3(2) of the Public Authorities Limitation Act and Section 90 of the Employment Act 2007, and that the Court therefore lacked jurisdiction. The Respondent submitted that Section 12(1)(a) of the Employment and Labour Relations Court Act is subject to statutory limitation provisions, relying on the Supreme Court decision in Re the Matter of the Interim Independent Electoral Commission on jurisdiction, and on other authorities including Mary Wambui Munene and Macfoy. The Claimant opposed the objection, arguing that his suspension and dismissal were unprocedural, that time began running when his appeal was rejected by the Teacher Service Commission Appeals Tribunal, and that Articles 47, 48 and 50 of the Constitution guarantee fair administrative action, access to justice and a fair hearing. The court found that the Claimant was dismissed on 9th March 2012 and filed the claim on 22nd March 2017, five years later, with no continuing injury shown after the dismissal. Applying Section 90 of the Employment Act, the court held the claim time barred and dismissed it for want of jurisdiction, awarding costs to the Respondents.

Key legal issues

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01

Limitation of actions in employment claims

Holding

The claim filed on 22nd March 2017 over a dismissal on 9th March 2012 was out of time and the Court had no jurisdiction to entertain it

Reasoning

Section 90 of the Employment Act bars civil actions arising out of the Act or a contract of service unless commenced within three years. The claimant's dismissal took effect on 9th March 2012 and no continuing injury was shown thereafter, so the claim filed in March 2017, five years later, was statute barred. Limitation goes to jurisdiction and the claim was accordingly dismissed.

p. 2
02

When time begins to run where internal appeal mechanisms exist

Holding

Time ran from the date of dismissal; the claimant's argument that time started when his appeal was rejected was not accepted

Reasoning

The claimant argued that time started running when the Teacher Service Commission Appeals Tribunal rejected his appeal, since internal mechanisms must first be exhausted. The court did not accept this reasoning, finding no continuing injury after the dismissal date and applying the three-year limitation from the dismissal date.

p. 2

Legal principles established

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  • No civil action or proceedings based on or arising out of the Employment Act or a contract of service shall be instituted unless commenced within three years of the act, neglect or default complained of
  • A claim filed outside the statutory limitation period is time barred and deprives the Court of jurisdiction

Court orders

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  1. 1.The Claimant's claim was dismissed for want of jurisdiction and for being time barred
  2. 2.Costs awarded to the Respondents
Jurisdiction invoked
Section 12(1)(a) of the Employment and Labour Relations Court Act, subject to limitation under Section 90 of the Employment Act 2007 and Section 3(2) of the Public Authorities Limitation Act

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, "Joel Sila Mwema v Teachers Service Commission [2019] KEELRC 1839 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1839/eng@2019-03-13

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