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ELRCPartially AllowedNot stated in the judgment

Jared Kerongo Bosire v Kenya Railways Corporation & another [2019] KEELRC 2272 (KLR)

Employment and Labour Relations Court
15 February 2019
2,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenyan court rules: you have only 12 months to sue the government for wrongful arrest, but employment claims get three years from the termination letter.

What this practically means

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Executive summary

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Before the Employment and Labour Relations Court in Nairobi were two preliminary objections, one by the 2nd Respondent (Attorney General) dated 4th May 2015 and one by the 1st Respondent (Kenya Railways Corporation) dated 29th June 2015, raising limitation and jurisdiction. The 1st Respondent argued that under s.87(b) of the Kenya Railways Corporation Act any action against the Corporation must be brought within twelve months of the act, neglect or default (six months for continuing injury), relying on the Court of Appeal decisions in Attorney General v Andrew Maina Githinji, Joel Kiprono Langat and Gerald Muli Kiilu. The 2nd Respondent relied on s.3(2) of the Public Authorities Limitation Act and s.90 of the Employment Act, citing Benjamin Wachira Ndiithi and Thuranira Karauri on limitation going to jurisdiction. The Claimant maintained he was a suspended employee never terminated, acquitted on 25th March 2013, and that suit was filed within two years. The court identified two causes of action: a tort claim in wrongful arrest and malicious prosecution against the Attorney General, which accrues on termination of criminal proceedings in the accused's favour and requires proof of malice, and the employment claim against the Corporation. Applying s.3(1) of the Public Authorities Limitation Act, the tort claim, accruing on acquittal on 22nd March 2013, lapsed after twelve months and was struck out. The claim against the Corporation accrued on receipt of the retrenchment letter of 7th October 2013 and was filed within time, so it proceeds. The court struck out the suit against the Attorney General and allowed the employment claim to continue against the 1st respondent. No costs order was recorded.

Questions the Court framed

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

  1. 1.Whether the Claim is time barred and does not lie in law by virtue of section 87(b) of the Kenya Railways Corporation Act, Chapter 397
  2. 2.Whether this Court lacks the requisite jurisdiction to entertain the matter
  3. 3.Whether the Claim against the 2nd Respondent is time barred

Key legal issues

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01

Whether the claim against the Attorney General is time barred

Holding

Yes; the tort claim accrued on acquittal on 22nd March 2013 and the suit filed 9th April 2015 exceeded the 12-month period under s.3(1) PALA

Reasoning

The claim against the Attorney General rests on arrest and malicious prosecution, a tort subject to s.3(1) of the Public Authorities Limitation Act requiring suit within 12 months of accrual. The cause accrues upon termination of criminal proceedings in the accused's favour, i.e. the acquittal on 22nd March 2013. Time expired 22nd March 2014; suit filed 9th April 2015 is out of time.

p. 3
02

Whether the claim against the 1st Respondent is time barred under s.87(b) of the Kenya Railways Corporation Act

Holding

No; the cause of action arose on receipt of the retrenchment letter of 7th October 2013 and suit filed on 9th April 2015 was within time

Reasoning

The court found the claimant was informed by letter dated 7th October 2013 that he was retrenched. That communication fixed the accrual of the cause of action against the 1st respondent. Since the claim was filed within the applicable limitation period from that date, the preliminary objection against the 1st respondent fails.

p. 4

Legal principles established

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  • A cause of action in wrongful arrest and malicious prosecution accrues upon termination of the criminal proceedings in favour of the accused and requires proof of malice
  • Proceedings founded on tort against the Government must be brought within twelve months of accrual; contract claims within three years
  • Limitation goes to jurisdiction and a time-barred suit is incompetent and should be struck out

Court orders

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  1. 1.Struck out the suit as against the Attorney General as it is statute barred
  2. 2.The claim on termination of employment to continue as against the 1st respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (claim under employment relationship); limitation raised under Kenya Railways Corporation Act s.87(b), Employment Act s.90 and Public Authorities Limitation Act s.3

Relief refused

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1st Respondent's preliminary objection seeking striking out/dismissal of the entire suit against Kenya Railways Corporation as time barred

The cause of action against the 1st respondent arose on receipt of the retrenchment letter dated 7th October 2013 and the claim was filed within the limitation period

p. 4

Costs

No costs order stated in the judgment (Respondents had urged dismissal with costs; none recorded)

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.

I therefore strike out the suit as against the Attorney General as it is statue barred while the claim on termination of employment will continue as against the 1st respondent.
p. 4Final orders / disposition
The cause of action in wrongful arrest and malicious prosecution accrues upon termination of the criminal proceedings in favour of the accused person.
p. 3Accrual of malicious prosecution claim
There must be proof of malice or a primary purpose other than that of carrying the law into effect in setting out a claim for malicious prosecution.
p. 3Elements of malicious prosecution
Limitation goes to the jurisdiction of the Court and a suit that is time barred is incompetent and should be struck out and the Plaintiff remains non-suited forever.
p. 3Limitation and jurisdiction (cited authority of Court of Appeal)

Issues in the judgment

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minor

The judgment states the claimant's suspension letter was issued on 24th August 2016 while elsewhere the alleged wrongful withholding of salary is said to date from 24th August 2006 and retrenchment from 2006; the claimant's account of a 2016 suspension is inconsistent with the 2013 retrenchment letter and the 2015 filing date.

minor

The acquittal date is given inconsistently within the judgment (25th March 2013 in submissions versus 22nd March 2013 in the court's determination).

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, "Jared Kerongo Bosire v Kenya Railways Corporation & another [2019] KEELRC 2272 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2272/eng@2019-02-15

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