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ELRCStruck OutPetition dated 24th September, 2024 (registered as a cause in the Judiciary CTS)· [2025] KEELRC 2138 (KLR)

Oduo v Teachers Service Commission (Cause E075 of 2024) [2025] KEELRC 2138 (KLR)

Employment and Labour Relations Court
21 July 2025
3,841 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A teacher's late employment case against the TSC was struck out because Kenya's three-year deadline for filing job disputes cannot be dodged by dressing it up as a constitutional petition.

What this practically means

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Executive summary

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The Petitioner, a teacher employed by the Teachers Service Commission, was interdicted on 20th November 2020, dismissed by letter dated 22nd July 2021 following allegations of sexual misconduct with a Form 3 student, and his internal review was declined. He filed a Petition in September 2024 seeking declarations of rights violations, judicial review orders, salary arrears of Kshs.2,806,266, other allowances totalling Kshs.3,751,570, terminal dues and damages. The respondent filed a Notice of Preliminary Objection dated 25th March 2025 contending the Petition was time barred under Section 89 of the Employment Act and that the court lacked jurisdiction. The court first satisfied itself that the objection met the Mukisa Biscuit threshold, holding that limitation and jurisdiction are pure points of law founded on facts the Petitioner did not contest. The court found, on the documentary evidence, that the Petition was filed more than three years after the dismissal. Applying the Anarita Karimi Njeru rule and the Court of Appeal decisions in Gabriel Mutava and Mugendi v Kenyatta University, the court held that the dispute raised no pertinent constitutional issue; all reliefs flowed from the contract of employment and were enforceable under the Employment Act, and the Petition was purposely styled a constitutional petition to circumvent the three-year limitation period. The court accordingly found the preliminary objection merited, struck out the Petition dated 24th September 2024, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the Notice of Preliminary Objection met the Mukisa Biscuit threshold

Holding

It did, because it raised the pure points of law of limitation and jurisdiction based on undisputed facts

Reasoning

The court applied the classic definitions of Law JA and Sir Charles Newbold P in Mukisa Biscuit. It found the petitioner had not contested the facts of dismissal on 22nd July 2021 and filing 3 years and 5 months later, which were discernible from the petitioner's own documents. Since jurisdiction is everything and limitation is a pure point of law, the objection was properly a preliminary objection.

p. 4
02

Whether the Petition was statute barred under Section 89 of the Employment Act

Holding

Yes; the Petition was filed more than 3 years after the dismissal and the court lacked jurisdiction

Reasoning

The petitioner was dismissed on 22nd July 2021 and filed the suit in September 2024, about 3 years and 5 months later. All the substantive reliefs were based on the contract of employment and could have been litigated in an ordinary claim within 3 years. The court found the suit was purposely filed as a Petition to circumvent Section 89, and accordingly the suit was statute barred.

p. 5
03

Whether dressing a labour dispute as a constitutional Petition cured the limitation bar (Anarita Karimi Njeru rule)

Holding

It did not; the Petition failed the Anarita Karimi Njeru threshold and raised no pertinent constitutional issue

Reasoning

Relying on Gabriel Mutava, Mugendi v Kenyatta University, Josephat Ndirangu and Peter Ndegwa Nderitu, the court held that where employment rights are regulated by statute, the Employment Act is the primary avenue. The reliefs sought, including reinstatement and terminal dues, are not constitutional remedies. The Petition was an archetypal employment dispute disguised as a constitutional petition to evade limitation.

p. 6

Legal principles established

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  • No civil action or proceedings based on the Employment Act or a contract of service in general shall be instituted unless commenced within three years next after the act, neglect or default complained of, or within twelve months after cessation of a continuing injury
  • Where a fundamental right is regulated by legislation, such legislation, not the underlying constitutional right, becomes the primary means for giving effect to the constitutional right; the Constitution should not be a thoroughfare for every common grievance
  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; jurisdiction and limitation are pure points of law

Court orders

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  1. 1.The respondent's Notice of Preliminary Objection dated 25th March, 2025 is merited
  2. 2.The Petitioner's Petition dated 24th September, 2024 is struck out
  3. 3.Parties shall bear own costs
Jurisdiction invoked
Articles 23, 25, 27, 28, 31, 41, 47, 48, 50, 73 and 153 of the Constitution of Kenya 2010 as invoked in the Petition; preliminary objection on limitation under Section 89 of the Employment Act

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, "Oduo v Teachers Service Commission (Cause E075 of 2024) [2025] KEELRC 2138 (KLR)", Case Analysis (2025). Petition dated 24th September, 2024 (registered as a cause in the Judiciary CTS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2138/eng@2025-07-21

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