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ELRCDismissedNot stated in judgment (Memorandum of Claim dated 10th May 2017)

Peancy Kavita Makau v Kangundo High School [2021] KEELRC 1374 (KLR)

Employment and Labour Relations Court
2 June 2021
1,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a former School Bursar employed by Kangundo High School in November 1980, sued the school alleging constructive dismissal. He averred that in July 2012 he was sent on compulsory leave to allow examination of the school's books, then arrested and charged in Kangundo SPM Criminal Case No. 570 of 2012 with misappropriation of Kshs. 2,741,348.50. He claimed the audit was conducted by the Principal's unqualified brother and that he was ultimately acquitted on a no-case-to-answer ruling. He was interdicted in February 2013 on half pay, which was never restored, and he asserts he was retired early by letter dated 12th May 2017. He sought a declaration of constructive dismissal without due process, arrears of half salary of Kshs. 913,210/-, salary in lieu of notice, leave allowance for 2013 to 2016, damages, service gratuity and a certificate of service. The respondent did not enter appearance or file a defence, and the matter proceeded by formal proof. The claimant relied on authorities on constructive dismissal including Humphrey Sitati v Board of Management Lenana School. The court, however, invoked Section 90 of the Employment Act, 2007, which requires employment claims to be filed within three years, and applied the Court of Appeal's decision in Attorney General & Another v Andrew Maina Githinji. Holding that although the claimant had a good claim, the suit filed in 2017 over a 2012 dismissal was stale, the court dismissed the entire suit with no order as to costs on 2nd June 2021.

Questions the Court framed

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

  1. 1.Whether the Claimant was constructively dismissed by the Respondent
  2. 2.Whether the claim is time-barred under Section 90 of the Employment Act, 2007

Key legal issues

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01

Limitation of employment claims under Section 90 of the Employment Act

Holding

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

Reasoning

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.

p. 2
02

Constructive dismissal (argued but not determined on the merits)

Holding

Not decided on the merits; the court assumed the claimant had a good claim but dismissed the suit on limitation grounds

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The claimant's suit is dismissed
  2. 2.No order as to costs

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 under the Employment Act, 2007 (claim arising out of a contract of service)

Relief refused

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Declaration of constructive dismissal without due process

The claim was filed outside the three-year limitation period under Section 90 of the Employment Act

p. 2

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

p. 2

Costs

No order as to costs - 'Suit is dismissed albeit with no order as to 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.

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.
p. 2final orders - dismissal of stale claim
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
p. 2Section 90 Employment Act limitation period
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
p. 2rationale for limitation in employment claims

Issues in the judgment

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minor

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'

minor

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

minor

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

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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, "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.