[2018] KEELRC 2222 (KLR)
The court held that the cause of action arose on 16/5/2012, the date of the claimant's dismissal. The claimant's subsequent appeal and correspondence did not extend or alter the statutory limitation period. Section 90 of the Employment Act requires that claims be filed within three years of the cause of action....
Source-derived case information.
- Citation
- [2018] KEELRC 2222 (KLR)
- Parties
- Claimant: Angelina M. Kalola; Respondent: Teachers Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 378 of 2017
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- claim dismissed for want of jurisdiction due to limitation period
- Judges
- HS Wasilwa
- Legal Topics
- Limitation Periods, Unlawful Termination, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Angelina M. Kalola
Claimant
Teachers Service Commission
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear a claim filed outside the statutory limitation period under Section 90 of the Employment Act.
- 2 Whether the cause of action arose on the date of initial dismissal or subsequent correspondence.
Ratio Decidendi
The court held that the cause of action arose on 16/5/2012, the date of the claimant's dismissal. The claimant's subsequent appeal and correspondence did not extend or alter the statutory limitation period. Section 90 of the Employment Act requires that claims be filed within three years of the cause of action. Since the claim was filed on 22/2/2017, well beyond the three-year limitation period, the court lacked jurisdiction to entertain the matter. The claim was therefore dismissed for being time-barred.
Court Disposition
claim dismissed for want of jurisdiction due to limitation period
Orders
- The claim is dismissed in its entirety for being filed outside the statutory limitation period.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 378 OIF 2017
(Before Hon. Justice Hellen S. Wasilwa on 13th March, 2018)
ANGELINA M. KALOLA ........................ CLAIMANT
VERSUS
TEACHERS SERVICE COMMISSION .................. RESPONDENT
RULING
1. The Application before Court is a Preliminary Objection filed by the Respondents herein dated 15th March 2017 on the grounds that this Court lacks jurisdiction to entertain this claim as it was filed out of time.
2. The Applicants have submitted that the cause of action arose on 17th May 2012 when the decision to terminate the Claimant Respondent was made. The Claimant filed this claim on 22. 2.2017 4 years, 8 months and 22 days after the termination. The Respondents therefore submit that the claim is time barred and the Court has no jurisdiction to entertain it.
3. The Respondent Applicants cited Re The Matter of theInterim Independent Electoral Commission (2011 ) eKLR where a 7 Judge bench rendered itself as follows:-
“That jurisdiction flows from the law, and the recipient Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretations, or by way of endeavours to discern or interpret the intentions of Parliament, where the working of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution”.
4. The Applicants also refer to Section 90 of Employment Act, which state that cases under the Act should be filed within 3 years from the time the cause of action occurred.
5. The Respondent on their part opposed this Preliminary Objection. They filed submissions indicating that the Claimant was prematurely dismissed on 16/5/2012 while a criminal case over the said allegations were ongoing and she appealed against this dismissal.
6. The Respondent then wrote a recommendation for the Claimant’s reinstatement as a teacher on 23. 4.2015 through the County Director for Kitui. The Respondent then went ahead to dismiss the Claimant through the decision dated 23. 4.2015.
7. The Claimant therefore avers that the claim was filed within the requisite period.
8. I have considered the averments of both parties. I note that indeed the Claimant was dismissed on 16/5/2012. She choose to appeal against this dismissal vide a letter dated 8/3/2015 which was also rejected and the appeal against the dismissal dismissed for being time barred. This means the date of dismissal stood at 16/5/2012 and this is when the cause of action arose.
9. The Claimant chose to file this case on 22. 2.2017. For this claim to be properly before Court it should have been filed by 15/5/2015 as envisaged under Section 90 of Employment Act 2007 which states as follows:-
“Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted un less it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof”.
10. This claim having been filed beyond the 3 years limitation period, it is improperly before Court and the Court cannot assume jurisdiction over it. This claim is therefore dismissed for want of prosecution in its entirety.
Dated and delivered in open Court this 13th day of March, 2018.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Museve holding brief for Mwalimu for Claimant – Present
Oyucho for Respondent – Present