[2004] KEHC 514 (KLR)
The court found that the substance of the suit was a challenge to the Plaintiff's dismissal from public service, which occurred in 1999. Although the Plaintiff also sought payments backdated to 1995, the primary cause of action was the dismissal. Since the suit was filed on 9th December 2002, it was within the...
Source-derived case information.
- Citation
- [2004] KEHC 514 (KLR)
- Parties
- Plaintiff: David Njue Kabungo; Defendant: County Council of Nyandarua; Defendant: The Public Service Commission; Defendant: Ministry of Local Authority; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 79 of 2002
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Legal Topics
- Limitation Periods, Unlawful Dismissal, Public Service Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Njue Kabungo
Plaintiff
County Council of Nyandarua
Defendant
The Public Service Commission
Defendant
Ministry of Local Authority
Defendant
The Attorney General
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time-barred under Section 3 of the Public Authorities Limitation Act, Cap.39.
- 2 Whether the cause of action arose in 1995 or 1999 for purposes of limitation.
Ratio Decidendi
The court found that the substance of the suit was a challenge to the Plaintiff's dismissal from public service, which occurred in 1999. Although the Plaintiff also sought payments backdated to 1995, the primary cause of action was the dismissal. Since the suit was filed on 9th December 2002, it was within the three-year limitation period prescribed by Section 3 of the Public Authorities Limitation Act. Therefore, the suit was not time-barred, and the preliminary objection was without merit.
Court Disposition
preliminary objection overruled
Orders
- The Preliminary Objection is overruled with costs.
- Parties to proceed and fix early hearing dates in this matter.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
HCC NO. 79 OF 2002
DAVID NJUE KABUNGO ……………………..PLAINTIFF
VERSUS
DAVID NJUE KABUNGO ……………………..PLAINTIFF
VERSUS
COUNTY COUNCIL OF NYANDARUA…..1ST DEFENDANT
THE PUBLIC SERVICE COMMISSION….2ND DEFENDANT
MINISTRYOF LOCAL AUTHORITY …….3RD DEFENDANT
THE ATTORNEY GENERAL………………4TH DEFENDANT
RULING ON A PRELIMINARY OBJECTION
1. The Objection by Counsel by Counsel for the 2nd Defendant to the hearing of the suit is premised on Section 3 of the Public Authorities Limitation Act, Cap.39. That sub-Section provides as follows:-
“No proceedings founded on contact shall be brought after the end of three years from the date on which the cause of action arose.”It is argued that the cause of action herein arose in 1995 and the suit herein filed in 1999, a year after time had lapsed.
2. In response, Counsel for the Plaintiff argues that the cause of action arose in 1999 when the Plaintiff was dismissed from service and therefore the suit was filed well within time.
3. I have perused the Plaint and it is clear that the Plaintiff is challenging his dismissal from Public Service on 8. 12. 1999. (paragraphs 7, 8, and 9 of the Plaint.) However he also seeks certain payments backdated to 1995 when he was suspended
without those payments. The latter fact notwithstanding there is no reason why I should strike out the suit.
4. I think the Preliminary Objection was raised without too much thought and clarity of issues. The substance of the suit was a claim that arose in 1999 and the suit itself was filed on 9. 12. 2002. I think it is not filed in contravention of Section 3 (2) of the Act and it must proceed.
5. I overrule the Preliminary Objection with costs and order that parties do proceed and fix early hearing dates in this matter. Orders accordingly.
Dated and delivered in open court on this 1st day December 2004.
I.LENAOLA
AG. JUDGE
Mr. Okwaro for Plaintiff
N/A for other parties
I.LENAOLA
AG. JUDGE.