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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 3315 (KLR)

Ayoo v Nursing Council of Kenya & 2 others (Cause 270 of 2019) [2023] KEELRC 3315 (KLR)

Employment and Labour Relations Court
20 December 2023
JGJACOB GAKERI
5,956 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a nurse's multi-million shilling allowances claim against the Nursing Council of Kenya because it was filed more than three years late and named the wrong employer.

What this practically means

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Executive summary

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The Claimant, a Ministry of Health employee posted to the Nursing Council of Kenya in May 2013, sued the Council and two officers claiming withholding of allowances and dues arising from his suspension and stoppage of salary after he travelled to Uganda in late September 2015 to commence a Masters degree at Makerere University without course approval. He sought declarations, Kshs.1,705,190 in unpaid allowances, reimbursement of Sacco, insurance and bank charges, contempt and abuse-of-office orders, and that the officers be barred from public office. The court framed three issues: employment relationship, limitation, and entitlement to reliefs. It held the Claimant remained an employee of the Ministry of Health, having merely been posted (not seconded) to the Council, so no employment relationship with the Council existed and the ELRC lacked jurisdiction over it; alternatively, the Council was an agent of a disclosed principal and not properly sued. The claim, filed in April 2019, was also statute barred under Section 90 of the Employment Act, the cause of action having accrued in October 2015. The suspension was found justified: the Claimant absconded duty without written approval, which a seasoned public officer knew was required. The 2nd and 3rd Respondents acted within their mandate, were improperly joined, and bore no personal liability. Individual heads of claim failed for want of proof and lack of nexus; the contempt prayer was outside the court's jurisdiction. The entire suit was dismissed with costs on 20th December 2023, delivered virtually at Nairobi.

Key legal issues

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01

Employer/employee relationship between the Claimant and the 1st Respondent

Holding

There was no employment relationship; the Claimant remained an employee of the Ministry of Health

Reasoning

The Claimant was employed by the Ministry of Health in 1997 and merely posted to the Nursing Council of Kenya on 13th May 2013 to implement a project. The payslip 'basic' of Kshs.41,590 was an allowance, not a salary; his salary was paid and suspended by the Ministry. No secondment under the HR Manual was envisaged. Hence ELRC jurisdiction under Section 12(1) was not attracted against the 1st Respondent.

p. 12
02

Limitation under Section 90 of the Employment Act

Holding

The suit was statute barred

Reasoning

The allowances claimed fell due in October 2015 when the cause of action accrued. Under Section 90, claims arising from the Employment Act or contracts of service must be commenced within three years. Filed on 24th April 2019, the suit was outside the limitation window, and limitation can be raised at any stage, even suo motu.

p. 9
03

Justification of the suspension and conduct of the 2nd and 3rd Respondents

Holding

The suspension was justified and the officers acted within their mandate; no personal liability

Reasoning

The Claimant left for Uganda without course approval, which in the public service must be in writing following a committee process. His desertion justified the reporting and suspension letters. The alleged mis-statement of his name was a clerical error without malice, and the officers, acting in their official capacities for bodies with capacity to sue and be sued, could not be personally sued for official acts done in good faith.

p. 9
04

Improper joinder of the 2nd and 3rd Respondents

Holding

The 2nd and 3rd Respondents were not necessary parties

Reasoning

Being employees of the Nursing Council of Kenya and the Ministry of Health respectively, they acted on behalf of their offices and cannot be sued personally for official acts done in good faith; their bodies are juristic persons with capacity to sue or be sued.

p. 9

Legal principles established

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  • An employee posted to a host institution for a project remains an employee of the substantive employer which pays his salary; posting is not secondment
  • A claim founded on the Employment Act or a contract of service must be filed within three years of the act complained of under Section 90
  • An agent of a disclosed principal is not liable to be sued at common law
  • The plea of limitation may be raised at any stage and even suo motu as it implicates jurisdiction

Court orders

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  1. 1.The Claimant's suit is dismissed with costs
Jurisdiction invoked
Section 12(1) of the Employment and Labour Relations Court Act, 2011

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, "Ayoo v Nursing Council of Kenya & 2 others (Cause 270 of 2019) [2023] KEELRC 3315 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3315/eng@2023-12-20

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