Kibidi v Teachers Service Commission (Cause E386 of 2024) [2025] KEELRC 64 (KLR)
The bottom line
#A retired teacher's claim against the TSC was struck out because he filed it more than 12 months after retiring, missing Kenya's employment limitation deadline.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a preliminary objection on limitation under section 90 of the Employment Act can be raised without a substantive pleading anchoring it
- 2.Whether the claims constituted a continuing injury within the meaning of section 90 of the Employment Act
- 3.When the continuing injury commenced and ceased, and whether the claim filed on 21 May 2024 was caught by the 12-month prescription
- 4.Whether the remedies sought depended on constitutional application or interpretation (Articles 41 and 47)
Key legal issues
#Whether the preliminary objection was properly before the court without a substantive pleading
Yes - a preliminary objection can be raised at any time regardless of absence of a pleading anchoring it
The Claimant argued the Respondent had not filed any pleading raising section 90 of the Employment Act to anchor the objection. The Court rejected this, holding that a preliminary objection may be raised at any time and it is immaterial that it was not founded on a substantive pleading. The Court therefore proceeded to determine the objection on its merits.
Whether the claims constituted a continuing injury under section 90 of the Employment Act
Yes - both parties agreed and the Court applied the Court of Appeal's definition in The German School Society & Anor v Ohany & Anor
Both parties agreed the wrongs were continuing injuries. The Court adopted the Court of Appeal's clarification distinguishing a continuing wrong (a single wrongful act causing continuing injury) from recurring/successive wrongs, and held that the failure to implement the CBA (underpayments) during the subsistence of employment constituted continuing injury within that holding.
Whether the claim, filed 21 May 2024, was time-barred
Yes - the continuing wrongs ceased on retirement on 1 January 2023, and the claim was filed more than 12 months later, caught by the 12-month prescription
The continuing legal wrongs started accruing on 1 July 2017 and 2 January 2020 upon the alleged wrongful placements. The Claimant retired with effect from 1 January 2023, when the wrongs ceased. The suit was filed on 21 May 2024, more than 12 months after cessation of the alleged wrongs, so the action was caught by the 12-month prescription on continuing injury claims in section 90. Further, the remedies sought were statutory, not dependent on constitutional application or interpretation, so Articles 41 and 47 did not rescue the claim.
Legal principles established
#- A preliminary objection may be raised at any time and need not be founded on a substantive pleading
- Underpayments and failure to implement a CBA during employment constitute continuing injury under section 90 of the Employment Act, but the 12-month prescription runs from cessation of the wrong
- Where remedies are found in statute and do not depend on constitutional application or interpretation, invocation of constitutional provisions does not evade limitation
Court orders
#- 1.The Notice of Preliminary Objection is upheld
- 2.The Memorandum of Claim is struck out with 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 (section 90 limitation in issue)
Relief refused
#All reliefs sought in the Memorandum of Claim, including declarations on job placement, discrimination, fair labour practices, unionisable status, review and proration of salary and allowances, and compensatory damages
The claim was statute-barred under section 90 of the Employment Act and the preliminary objection was upheld, resulting in striking out of the Memorandum of Claim
Costs
The Memorandum of Claim is struck out with costs to the Respondent.
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.
A Preliminary Objection can be raised at any time and it is immaterial that it has not been founded upon a substantive pleading by the party raising it.
In the circumstances, the Court concludes that the action is caught up by the 12-month prescription on continuing injury claims in section 90 of the Employment Act, 2007.
The Court finds merit in the Notice of Preliminary Objection. It is upheld with the result that the Memorandum of Claim is struck out with costs.
Issues in the judgment
#The case number and neutral citation are not stated in the judgment text; the suit is identified only by the parties and filing date
The relief sought itemised as (vii) skips item (vi) in the tabulation of underpaid salary and allowances
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibidi v Teachers Service Commission (Cause E386 of 2024) [2025] KEELRC 64 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/64/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.