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ELRCStruck OutNot stated in the extract (Statement of Claim filed 27.4.2018)

John Mutinda Kunga v Principal Secretary of Devolution and Planning & 3 others [2020] KEELRC 719 (KLR)

Employment and Labour Relations Court
16 July 2020
2,083 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out an employee's unpaid salary claim filed too late—unpaid wages during past suspension or dismissal must be sued for within three years.

What this practically means

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Executive summary

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The Respondents filed a Notice of Preliminary Objection on 25.4.2018 seeking the striking out of the Claimant's suit as time barred, an abuse of process, and for want of jurisdiction. The Claimant, whose suspension (19.3.2007) and dismissal (22.2.2011) had each been quashed by the High Court in Misc. Application No. 418 of 2007 (judgment 1.8.2008) and JR Case No. 141 of 2011 (judgment 19.4.2013), and who was reinstated by letter dated 25.5.2016, sought salaries and allowances for the suspension and dismissal periods, contending that the employer-employee relationship subsisted and the injury was continuing. In submissions the Respondents additionally urged res judicata, though it was not raised in the Notice. Applying Mukisa Biscuit, the court held that limitation is a pure point of law requiring no ascertainment of facts, and declined to consider res judicata since it was not pleaded in the Notice. Applying section 90 of the Employment Act, the Court of Appeal's decisions in Attorney General v Andrew Maina Githinji and G4S Security Services, the court held that claims for salary withheld during defined past periods of suspension and dismissal are not continuing injuries; the cause of action accrued when the salary fell due, and both claims lapsed three years later, on 1.8.2011 and 19.4.2016 respectively. Mathew Orinya Oyule was distinguished as involving a pending interdiction. The objection was allowed, the suit was struck out as time barred and for want of jurisdiction, with each party bearing their own costs.

Questions the Court framed

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

  1. 1.Whether the suit is time barred (the grounds in the Notice of Preliminary Objection compressed into one issue)
  2. 2.Whether the Notice of Preliminary Objection raises a pure point of law
  3. 3.Whether the claim constitutes a continuing injury under the proviso to section 90 of the Employment Act

Key legal issues

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01

Whether a preliminary objection on limitation is a pure point of law

Holding

Yes; limitation is a pure point of law arguable on assumed facts where no fact needs ascertainment

Reasoning

Applying Mukisa Biscuit, the court held that whether the suit is time barred is a pure point of law since the parties agreed the Claimant had been suspended and dismissed, so no facts required ascertainment. Res judicata, though urged in submissions, was not raised in the Notice and was therefore not considered.

p. 3
02

When the cause of action for unpaid salary accrues and whether it is a continuing injury

Holding

The cause of action accrued when the withheld salary became due during suspension and dismissal; it is not a continuing injury

Reasoning

Relying on Attorney General v Andrew Maina Githinji and G4S Security Services, the court held that claims for salary withheld during specific past periods of suspension and dismissal accrue when the salary fell due, and are not continuing injuries. Oyule was distinguished because there the interdiction and disciplinary proceedings were pending, whereas here the suspension and dismissal had been quashed.

p. 3
03

Application of the 3-year limitation period in section 90 of the Employment Act

Holding

Both claims lapsed: the suspension-period salary claim lapsed on 1.8.2011 and the dismissal-period claim on 19.4.2016

Reasoning

Section 90 requires employment actions to be instituted within three years of the act complained of, or within twelve months of cessation of a continuing injury. The suit filed on 27.4.2018 fell outside both periods, so the court struck it out and also held it lacked jurisdiction.

p. 3

Legal principles established

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  • The cause of action for withheld salary due during suspension or dismissal accrues when the salary became due; it is not a continuing injury, and claims outside the 3-year period in section 90 of the Employment Act are time barred

Court orders

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  1. 1.The Notice of Preliminary Objection is allowed
  2. 2.The suit is struck out as time barred and for lack of jurisdiction
  3. 3.Each party shall bear their own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 165(3)(b) of the Constitution; Section 12 of the Employment and Labour Relations Court Act; Rule 4(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (as urged by Respondents); section 90 of the Employment Act on limitation

Relief refused

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The Claimant's claim for salaries and allowances for the suspension and dismissal periods

The suit was time barred under section 90 of the Employment Act, the claims having lapsed on 1.8.2011 and 19.4.2016 respectively, and the court lacked jurisdiction to entertain it

p. 3

Costs

Each party shall bear their own 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.

In conclusion, I allow the objection and strike out the suit because it is time barred and the court lacks jurisdiction to entertain it. Each party shall bear own costs.
p. 3Final orders - striking out for time bar
I distinguish the Matthew Orinya Oyule case from the instant case, because in that matter the Claimant was facing pending disciplinary proceeding manifested by the continuing interdiction while in the instant case the suspension and dismissal were quashed.
p. 3Continuing injury distinguished
The issue of res judicata was not raised in the Preliminary Objection and the claimant never submitted on it. Therefore I will not consider it.
p. 3Scope of preliminary objection - res judicata not considered
the cause of action does not constitute a continuing injury. Accordingly, I return that the cause of action accrued from the date when the withheld salary became due during the suspension and the dismissal.
p. 3Accrual of cause of action for withheld salary

Issues in the judgment

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minor

The Claimant's submission states 'the injury is still time barred', apparently an error for 'continuing'

minor

The court struck out the suit for lack of jurisdiction although the preliminary objection framed it as lack of jurisdiction to extend time; the basis of the jurisdictional finding vis-à-vis the limitation bar is not elaborated

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, "John Mutinda Kunga v Principal Secretary of Devolution and Planning & 3 others [2020] KEELRC 719 (KLR)", Case Analysis (2020). Not stated in the extract (Statement of Claim filed 27.4.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/719/eng@2020-07-16

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