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ELRCStruck OutNot stated in judgment

Ritho v Teachers Service Commission (Petition E005 of 2024) [2024] KEELRC 2799 (KLR)

Employment and Labour Relations Court
14 November 2024
1,816 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a dismissed teacher's constitutional petition because he filed it more than three years after dismissal — waiting on internal appeals doesn't pause the clock.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nyeri (Onesmus N Makau J) on the respondent's Notice of Preliminary Objection dated 22nd May 2024 in a petition by a dismissed teacher. The petitioner, dismissed for gross misconduct on 10th December 2020 and unsuccessful in an internal review decided on 9th March 2022, filed a petition on 9th February 2024 seeking declarations of violations of Articles 41, 42(1), 47 and 50(2)(a), general damages, twelve months' salary as compensation, and reinstatement. The respondent objected that the petition was time barred under section 90 of the Employment Act and failed the Anarita Karimi Njeru constitutional pleading threshold. The court framed two issues: whether the suit was time barred, and whether the petition met the constitutional pleading threshold. It held the cause of action arose on the date of dismissal, that the internal review did not extend limitation (and even from 9th March 2022, over a year remained before the period lapsed on 10th December 2023), and that the petition was a disguised unlawful-dismissal claim shielded as a constitutional petition to defeat the statutory time bar. It further found the petition pleaded no manner of constitutional violation and offended the doctrine of constitutional avoidance, the petitioner having failed to pursue Employment Act remedies. The objection was allowed and the petition struck out with costs to the respondent.

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.
  2. 2.Whether the petition meets the competence threshold of a Constitutional pleading.

Key legal issues

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01

Whether the suit is time barred under section 90 of the Employment Act

Holding

The cause of action arose on the date of dismissal (10th December 2020); internal review did not suspend limitation, and the petition filed in February 2024 was out of time

Reasoning

The court held the petition is founded on the contract of employment, so section 90's three-year limit applies. The claimant did not demonstrate that internal mechanisms bound him or exhausted more than three years. Even counting from the review dismissal on 9th March 2022, more than a year remained before limitation lapsed on 10th December 2023, so the delay was the petitioner's own fault.

p. 3
02

Whether a constitutional framing avoids the limitation period

Holding

No - the petition was a disguised unlawful-dismissal claim and was statute barred

Reasoning

The court accepted the respondent's argument that the petition was a mere unlawful dismissal claim elevated to a constitutional question to defeat section 90. It found no unlimited limitation period applies where the substance of the dispute is a contractual employment claim.

p. 3
03

Whether the petition met the Anarita Karimi Njeru pleading threshold

Holding

It did not - the petitioner only cited constitutional Articles without demonstrating how they were violated

Reasoning

Applying Anarita Karimi Njeru and Mumo Matemu, the court perused the petition and found it merely cited the constitutional provisions without pleading with reasonable precision the manner of infringement. The pleaded dispute was in substance unlawful termination under section 45 of the Employment Act and Article 41, with a claim for twelve months' salary.

p. 4
04

Whether the doctrine of constitutional avoidance barred the petition

Holding

Yes - the petitioner should have pursued remedies under the Employment Act before resorting to a constitutional petition

Reasoning

Relying on Anthony Miano v Attorney General (Mrima J), the court held that a constitutional court should decline jurisdiction where another statutory remedy exists. The petitioner slept on his right to sue under the Employment Act until limitation lapsed, then morphed his claim into a constitutional question.

p. 4

Legal principles established

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  • Causes of action under a contract of service or the Employment Act must be commenced within three years, and the limitation period runs from the act complained of, not from the conclusion of internal appeal mechanisms.
  • A claim of unlawful dismissal dressed as a constitutional petition to circumvent a statutory time bar will be struck out.
  • Constitutional petitions must plead with reasonable precision the provisions infringed and the manner of infringement, and the doctrine of constitutional avoidance requires resort to statutory remedies first.

Court orders

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  1. 1.The respondent's Notice of Preliminary Objection dated 22nd May 2024 is allowed as prayed
  2. 2.The petition is struck out with costs to the 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 over employment and constitutional claims (petition founded on contract of employment); ELRC Procedure Rules referenced

Relief refused

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All reliefs sought in the petition (declarations of constitutional violation, general damages, compensation of 12 months' salary, reinstatement)

The petition was statute barred under section 90 of the Employment Act and failed the Anarita Karimi Njeru constitutional pleading threshold; it also violated the doctrine of avoidance

p. 4

Costs

Costs to the respondent

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.

Having taken into account the matters above, I must conclude that the objection by the respondent has merits and it is allowed as prayed. As such, the petition is struck out with costs to the respondent.
p. 4Disposition - preliminary objection allowed and petition struck out
The petition is a mere case of unlawful dismissal being covered with the mask of Constitutional petition in order to circumvent the statutory time bar. I need not say more. The petition is statute barred under section 90 of the Employment Act, 2007.
p. 3Statute-barred disguised constitutional petition
Having considered all the foregoing matters, I find that the petitioner filed his suit outside the statutory period of three years provided under section 90 of the Employment Act, 2007.
p. 3Limitation under section 90 Employment Act
All that the petitioner has done is to cite the Articles of the Constitution which form the foundation of the petition without demonstrating how the said provisions were violated by the respondent.
p. 4Failure to meet Anarita Karimi Njeru threshold
He slept on his right to move the court under that statute until the statutory period lapsed and then morphed and elevated his claim to constitutional question so as to defeat section 90 of the Employment Act, 2007.
p. 4Doctrine of constitutional avoidance

Issues in the judgment

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minor

The case number, neutral citation and full party names are not stated anywhere in the ruling extract provided

minor

The relief sought in the petition refers to 'An order reinstating the claimant' although the party is styled petitioner throughout

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, "Ritho v Teachers Service Commission (Petition E005 of 2024) [2024] KEELRC 2799 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2799/eng@2024-11-14

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