Peancy Kavita Makau v Kangundo High School [2021] KEELRC 1374 (KLR)
The bottom line
#A Kenyan court dismissed a meritorious unfair dismissal claim solely because it was filed five years late — employment claims must be filed within three years.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was constructively dismissed by the Respondent
- 2.Whether the claim is time-barred under Section 90 of the Employment Act, 2007
Key legal issues
#Limitation of employment claims under Section 90 of the Employment Act
The claim filed in 2017 over a dismissal/interruption of employment dating from 2012 was filed far outside the three-year limitation period and was dismissed despite merit
The court reproduced Section 90 of the Employment Act, which peremptorily limits actions arising out of the Act or a contract of service to three years. Relying on the Court of Appeal's reasoning in Attorney General & Another v Andrew Maina Githinji, the court noted the provision protects both parties from stale claims where memories have faded and documents lost. The claimant's cause of action arose in 2012 but suit was filed in 2017, well beyond the limitation window.
Constructive dismissal (argued but not determined on the merits)
Not decided on the merits; the court assumed the claimant had a good claim but dismissed the suit on limitation grounds
The claimant relied on Humphrey Sitati v Board of Management Lenana School, citing Coca Cola East & Central Africa Limited v Maria Kagai Ligaga and Lord Denning's exposition in Western Executive (ECC) Limited v Sharp, arguing that indefinite suspension on half pay after acquittal amounted to a repudiatory breach entitling him to treat the contract as terminated. The respondent filed no appearance or defence and the matter proceeded by formal proof, but the court disposed of the claim on limitation.
Legal principles established
#- Claims based on the Employment Act or a contract of service must be commenced within three years of the act complained of, failing which they are time-barred and liable to dismissal
Court orders
#- 1.The claimant's suit is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim arising out of a contract of service)
Relief refused
#Declaration of constructive dismissal without due process
The claim was filed outside the three-year limitation period under Section 90 of the Employment Act
Arrears of salary of Kshs. 913,210/-, salary in lieu of notice, leave allowance, damages for unlawful termination, retirement benefits/gratuity and certificate of service
Entire suit dismissed for being time-barred despite the claimant having a good claim
Costs
No order as to costs - 'Suit is dismissed albeit with no order as to costs.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Claimant has a good claim but he waited for too long to file it. He filed the case in 2017 while his dismissal was in 2012. The Claimant's claim must therefore suffer the only fate befitting a stale suit – dismissal. Suit is dismissed albeit with no order as to costs. It is so ordered.
no civil action or proceedings based or arising out 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
By expressly inserting Section 90, the intention of Parliament, in my view, at least in part, must have been to protect both the employer and the employee from irredeemable prejudice if they have to meet claims and counter claims made long after the cause of action had arisen
Issues in the judgment
#The claimant's name 'Peancy Kavita Makau' is grammatically female but the judgment consistently refers to the claimant in the male gender, e.g. 'The Claimant averred that he was employed' and 'he specifically seeks his retirement benefits'
The relief sought in the claim includes damages of Kshs. 366,880/- yet the pleading states 'since the Claimant was unlawfully terminated his service', a drafting error in the judgment
The acquittal is said to have been in Kangundo SPM Criminal Case No. 570 of 2012 while the arrears claim runs to January 2017 and the letter of early retirement is dated 12th May 2017, making the limitation start date (2012 dismissal vs 2017 retirement) not clearly resolved in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peancy Kavita Makau v Kangundo High School [2021] KEELRC 1374 (KLR)", Case Analysis (2021). Not stated in judgment (Memorandum of Claim dated 10th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1374/eng@2021-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.