[2021] KEELRC 1893 (KLR)
The court held that the effective date of termination is when the employee receives the letter of dismissal, not the retroactive date stated in the letter. Since the petitioner received the dismissal letter on 5th December 2017, and the petition was filed within three years of that date, the cause of action was not...
Source-derived case information.
- Citation
- [2021] KEELRC 1893 (KLR)
- Parties
- Applicant: Alice Njambi Mutura; Respondent: Principal Secretary, Ministry of Health; Respondent: The Hon. Attorney-General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition E047 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- J Rika
- Legal Topics
- Limitation of Actions, Unfair Termination, Employment Contracts, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Njambi Mutura
Applicant
Principal Secretary, Ministry of Health
Respondent
The Hon. Attorney-General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the petition is time-barred under Section 90 of the Employment Act 2007.
- 2 Whether the effective date of termination is the date of the dismissal letter or the retroactive date stated in the letter.
Ratio Decidendi
The court held that the effective date of termination is when the employee receives the letter of dismissal, not the retroactive date stated in the letter. Since the petitioner received the dismissal letter on 5th December 2017, and the petition was filed within three years of that date, the cause of action was not time-barred under Section 90 of the Employment Act. The court found no evidence to support the respondents' claim that the petition was filed out of time or that the petitioner was attempting to circumvent the statutory limitation period by filing a constitutional petition. Accordingly, the preliminary objection was rejected.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is rejected.
- Costs in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOURRELATIONS COURT
AT NAIROBI
PETITION NO. E047 OF 2020
BETWEEN
ALICE NJAMBI MUTURA...................................................PETITIONER
VERSUS
1. PRINCIPAL SECRETARY, MINISTRY OF HEALTH
2. THE HON. ATTORNEY- GENERAL..........................RESPONDENTS
RULING
1. The Petitioner filed her Petition on 19th September 2020. She was employed by the Ministry of Health on 10th January 1989 as a Nurse.
2. She received a letter dated 5th May 2017 from the 1st Respondent, alleging that she had not been on duty, since 3rd January 2017.
3. She explained that she was kept away by illness.
4. She received a letter from the 1st Respondent, dated 5th December 2017, dismissing her with effect from 3rd January 2017.
5. She filed this Petition seeking various declaratory orders under the Constitution of Kenya, and seeking in main, reinstatement.
6. The Respondents filed a Notice of Preliminary Objection, stating that the Petitioner’s cause of action is time-barred under Section 90 of the Employment Act, which places a time-bar of 3 years from the date of termination, on causes brought under contracts of employment regulated by the Employment Act 2007. It is submitted by the Respondents, that the Petition is an ordinary Claim, which is made as a Petition, with the intention of circumventing the time-bar, under Section 90 of the Employment Act.
The Court Finds: -
7. There is no agreement on relevant dates.
8. The Petitioner submits that the Petition was filed on 8th September 2020. The Respondent submits that the Petition was filed on 11th November 2020. The stamp of the Court on receiving the Petition, indicates the filing date as 19th September 2020.
9. The Petitioner states she received a letter dated 5th December 2017, dismissing her with effect from 3rd January 2017. She has not exhibited the letter of dismissal in her Petition.
10. If indeed she received the letter on 5th December 2017, her contract of employment would be deemed to have been terminated on the date she received communication about termination - 5th December 2017. It cannot have been January 2017. Termination does not take effect until the letter, or notice of termination is in the hands of the Employee. It cannot be retroactive. The Petitioner could not have taken any action in January 2017, without knowledge of the decision to terminate her contract.
11. The Respondents have not disputed the date their letter of dismissal was received by the Petitioner.
12. The Petition does not appear to the Court to be time-barred. The letter of dismissal having been received by the Petitioner in December 2017, the cause of action was alive and well on any date suggested to be the filing date- 8th September 2020, 19th September 2020 or even 11th November 2020. IT IS ORDERED: -
a. The Preliminary Objection is rejected.
b. Costs in the cause.
DATED AND SIGNED AT CHAKA, NYERI COUNTY, UNDER MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 9TH DAY OF APRIL 2021
JAMES RIKA
JUDGE