https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2356

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **CAUSE NO. E485 OF 2022** *(Before Hon. Justice Dr. Jacob Gakeri)* **GEOFFREY KIBET KORIR…..…………………………..…. CLAIMANT** **-VERSUS-** **THE PRINCIPAL SECRETARY, MINISTRY OF HEALTH………………………………………….……….1ST RESPONDENT** **THE ATTORNEY GENERAL……………………….2ND RESPONDENT** **JUDGMENT** The claimant commenced the instant suit on 12th July 2022 vide a Memorandum of Claim dated 1st July 2022 alleging unlawful termination of employment and non-payment of compensation damages. He alleged that his house allowances, commuter allowance, health risk allowance, health workers extraneous allowance, Government sponsored trainees allowance, accrued annual leave days, gratuity and severance pay had not been paid. The claimant’s case is that he was employed by the 1st Respondent in 2004 as a Radiation Protection Officer, promoted to Principal Radiation Protection Officer in 2010 at Kshs.114,840.00 and in October 2007 he was admitted for a PhD course in Radiological Science and Protection at Masachusetts University, USA and the Radiation Protection Board forwarded his admission letter to the Ministerial Training Committee recommending approval, on 31st October 2007 and was approved on 27th February 2008 at Kshs.2.2 million to be sponsored by the 1st Respondent and course approval was granted by the Ministry of Public Service on 19th June 2008, subject to a 3 year bond and remission of 20% of his basic salary in lumpsum after completing the course recoverable by instalments. That the claimant was released by the Board on 8th August 2008 to proceed to the USA to commence of the PhD course from 13th August 2008 to 13th August 2012 but the approval of the course was suspended on 13th August 2008 allegedly because the Ministry would incur Kshs.8,576,000.00 in the 4 years and the course was not a requirement for the scheme of service for Radiation Protection Officers. According to the claimant the Ministry was only liable to pay Kshs.2.2 million. On appeal, vide letter 18th August 2008, the claimant proceed for studies vide letters dated 6th October 2008 and 8th August 2008 with no financial support until 12th June 2009 when the course was approved with funding of Kshs.2.2 million. That vide letter dated 15th September 2010 the Public Service Commission recommended the claimant for promotion from Job Group L to N and vide letter dated 23rd January 2015. The claimant was suspended from duty on account of absence although had sought extension of study leave on 1st August 2012 and availed certificates for the Master Degree dated 18th May 2012 and PhD dated 18th May 2013, but was dismissed vide letter dated 24th June 2016 effective 1st August 2013 and was informed that he owed the Respondent Kshs.838,350.00 as paid salary and allowances while out of work. On Appeal vide letter dated 16th May 2017, the appeal was dismissed, but lodged a review with the Public Service Commission on 28th February 2018 but received no response and filed the instant suit for unlawful dismissal. The claimant prays for; 1. Unpaid house allowance Kshs.2,712,000.00 2. Unpaid commuter allowance Kshs.904,000.00 3. Unpaid Health risk allowance Kshs. 226,000.00 4. Unpaid health workers extraneous allowance Kshs.1,761,695.00 5. 12 months compensation for unfair termination service pay Kshs.516,780.00 6. Certificate of service 7. Costs of the suit 8. Interest on (i) – (vi) above 9. Any further relief that the court may deem just and expedient to grant **Respondent’s case** By a Reply to the Memorandum of Claim dated 29th July 2022, the Respondent admitted that the claimant was its employee but denied that he was employed in 2004 as a Radiation Protection Officer or the was salary of Kshs.114,840.00 The Respondents denied all other allegations made by the claimant except the fact that the claimant’s counsel applied for review of the dismissal buy the Public Service Commission (P.S.C) in 2018. The Petitioner had not filed submissions by 23rd July 2026 in accord with the court’s directions issued on 2nd July 2026. **Respondent’s Submissions** As to whether the suit is statute barred by dint of Section 89 of the Employment Act, reliance was placed on the decision in **Banking, Insurance and Finance Union (K) v Bank of India** for the proposition that in employment matters the limitation period was 3 years and in the instant case the claimant’s employment was terminated on 24th June 2016 and the suit was filed on 5th July 2022 after the limitation period had lapsed in 2019. Reliance was also placed on the sentiments of Radido J (as he then was) in **Maria Machacho v Total (K) Ltd** to submit that the suit was statute barred and the court had no jurisdiction to entertain it. Counsel urged the court to dismiss the suit with costs. As to whether the 1st Respondent had a valid reason to terminate the claimant’s employment, counsel cited the provisions of Section 43, 44, 45 and 47(5) of Employment Act and the decisions in **Walter Ogal Anuro v Teachers Service Commission (2013) eKLR, Evans Kimadi Misango v Barclays Bank of Kenya (2015) eKLR.** Counsel urged that the claimant did not adduce evidence to prove that he had approval to proceed for studies in the USA and was guilty of misconduct. Concerning reliefs, counsel submitted that none was merited because termination of the claimant’s employment was substantively and procedurally fair. Counsel submitted that the claimant tendered no evidence to prove entitlement to the Kshs.12,312,000 claimed. The decision in **Ngokonyo & 2 others v Telkom Kenya Ltd (2025) KESC 75 (KLR)** was cited on anticipatory earnings. **Analysis and determination** The facts alleged by the claimant are largely uncontested and are verifiable from the documents he availed in support of his case. Intriguingly, the Respondent neither filed a witness statement or list and bundle of documents nor call any witness. During cross-examination, the claimant admitted that he was dismissed from employment on 24th June 2016 and was informed of the right of appeal. He could not recall the duration given to exercises the right of appeal but guessed it was 6 months and confirmed that the advocate appealed on his behalf vide letter dated 16th May 2017. The claimant confirmed on cross-examination that he travelled out of the country in August or September 2008 and was claiming Kshs.2,712,000.00 as house allowance for a duration he could not recall, but then guessed it was from 2008 -2022. The witness confirmed that he works as a professor in New Jersey United States of America. He also testified confirmed that the dismissal was overturned by the Public Service Commission which approved negotiations on payment. On re-examination, the claimant testified that after leaving in 2008 he only came back for research not to work. From the documents on record, it is discernible that the parties negotiated, consent was reached but it was not executed by the Permanent Secretary Ministry of Health and Sanitation and was thus ineffectual. The issues for determination are: 1. Whether the claimant’s suit is statute barred. 2. Whether termination of the claimant’s employment was lawful and fair 3. Whether the claimant is entitled to the reliefs prayed for As to whether the instant suit is statute barred, it is trite law that claims arising out of employment contracts ought to be filed within three (3) after the separation being challenged. This case turns on this issue. Section 89 of the Employment Act provides. Notwithstanding, the provisions of section 4(1) of the Limitation of Actions Act (Cap 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless 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. Judicial authority on limitation of actions postulates that the cause of action in respect of a contract of service accrues from the date of termination from employment or dismissal. In **Attorney General & another v Andrew Maina Githinji and another (2016) KECA 817 (KLR),** the Court of Appeal held: *“… The Respondents had a clear cause of action against the employer when they received their letters of dismissal on 2nd October 2010, they had all the facts which had disciplinary proceedings and they could have filed legal proceedings if they felt aggrieved by that dismissal but they did not…* *Having found that the cause of action arose on 2nd February 2010 and that the claim was filed on 16th June, 2014, it follows by simple arithmetic that the limitation period of 3 years was surpassed by a long margin. The claim was time barred as at 1st February 2013 and I so hold…”* In this regard, see also **G4S Security Services (K) Ltd v Joseph Kamau & 486 others (2018) KECA 827 (KLR), Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another (2016) KECA 2013 (KLR), Beatrice Kahai Adagala v Postal Corporation of Kenya (2015) KECA 257 (KLR) and Ngowa & 36 others v Krystalline Ltd (2015) KECA 286 (KLR).** Relatedly, judicial authority is also unambiguous that the provisions of Section 89 of the Employment Act have no exception and the court has no jurisdiction to extend time. In **Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another (Supra),** the Court of Appeal held: *“For us it is clear from our reading of section 90 a foresaid that there are no exceptions to the three years limitation period save for cases of continuing injury or damages where actin or proceedings must be brought within twelve months after the cessation thereof. This was not a case of continuing injury or damage but one of a single act of termination…”* See also **The German School Society & another v Ohany & another (2023) KECA 894 (KLR).** Finally, under the provisions of Section 89 of the Employment Act when time starts running, it runs continuously and the period lapses. Nothing can stop it. In **G4s Security Services (K) Ltd v Joseph Kamau 486 others (Supra)** the Court of Appeal held: *“Time does not stop running on the commencement of reconciliation or other alternative dispute resolution. Mechanisms provided for under the constitution or any other law. This is fortified by the decision of this court in the case of* ***Rift Valley Railways (Kenya) Ltd v Hawkings Wagunzo Musonye & another (2016) eKLR*** *which held as follows… “Time does not stop running merely because parties are engaged in an out of court negotiations.”* Since the claimant was dismissed from employment on 24th June 2016 which he received and lodged an appeal with the PSC vide letter 16th May 2017, and the instant suit was filed on 4th July 2022 more than six (6) years later, the instant suit is clearly statute barred by dint of Section 89 of the Employment Act. It is trite law that limitation of time is a jurisdictional issue as a court of law has no jurisdiction to hear or determine a statute barred suit. As held in **Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989)** jurisdiction is every thing and without it a court must down its tools as the court does in this instance. The suit is struck out for want of jurisdiction. Had the suit not been struck out how would the claimant have fared? On termination, it is trite law that for a separation to pass muster it must be demonstrated that the employer had a valid and fair reason to terminate the employee’s employment and did so in accordance with a fair procedure in accordance with the provisions of Section 41, 43, 45 and 47 (5) of the Employment Act. The reason for termination of employment may have been grounded on the employee’s conduct, capacity or compatibility or operational requirements of the employer and must be proved by evidence. As held by Linnet Ndolo J (as she then was) there must have been a substantive justification for the termination of employment and procedural fairness. See **Walter Ogal Arural v Teachers Service Commission (Supra).** Similarly in **Naima Khamis v Oxford University Press (EA) Ltd (2017) eKLR** the Court of Appeal reinforced the foregoing by holding that a termination of employment my be substantively or procedurally unfair or both substantively and procedurally unfair. Under Section 43 of the Employment Act, the employer is required to prove the reason or reasons for termination of employment. These are the matters the employers genuinely believed to exist and caused the termination of the employee’s employment. See **Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others (2019) eKLR** on the standard of proof which is on balance of probabilities. Concerning the reason for the claimant’s dismissal, documents on record and by his admission in court, the claimant left the country sometimes in August/September 2008 to commence PhD studies at the University of Massachusetts Lowell, for a duration of four (4) years and he obtained a Degree of Master of Science Radiological Science and Protection in February 2012 and a PhD in May 2013 and was honoured as an outstanding Graduate student in 2013. The claimant had sought an extension of study leave sometime in 2012 to enable him finalize the course and an extension appear to have been granted or the employer was aware of the request and expected him to resume duty in 2013 but he did not. Though discernible from the Letter of dismissal dated 24th June 2026 which indicates the effective date of dismissal as 1st August 2013, almost three years earlier. The letter states that the dismissal was on account of desertion of duty, a fact the claimant did not contest in his appeal and adduced no evidence of having resumed duty since he left the country in 2008. Thus, the respondent had a valid and fair reasons to terminate the claimant’s employment. On procedure, the employer adduced no evidence to demonstrate that it complied with the provisions of section 41 of the Employment Act. As held in **Postal Corporation of Kenya v Andrew K. Tanui (2019) eKLR**, for a termination of employment to pass must, the employer is required to show that the reasons for which termination of employment was being considered was communicated to the employee, the reason(s) must be explained to the employee in a language understood by the employee and in the presence of a fellow employee or a shop floor representative of the employee’s choice, the employee is entitled to have a fellow employee or shop floor representative of his/her choice during the hearing and the representations made by the employee and/or the representative must be heard and considered in the decision making. From the evidence on record, it is clear that the claimant was not taken through any hearing and no notice to show cause was issued to put the claimant on notice that termination of employment was being considered yet he was reachable by ordinary mail or email. The court finds that termination of the claimant’s employment was procedurally flawed and thus unfair within the meaning of section 45 of the Employment Act. The court noted that vide the dismissal letter dated 24th June 2016, the Respondent was claiming the sum of Kshs.838,350.00 being salary and allowances the claimant continued to draw from 1st June 2013 to 10th November 2014 without rendering any service to the employer. On entitlement to reliefs the court proceeds as follows: 1. Declaration. Having found that termination of the claimant’s employment by the respondent was procedurally unfair the declaration sought is merited. 1. The prayer for commuter, Housing, Health Risk, Health Workers Extraneous and Government Sponsored Trainees allowances totaling Kshs.8,428,695.00 lacked a context and particulars. The claimant’s written statement dated 1st July 2022 made no reference of any unpaid allowance, when they fell due and for what duration. 1. Having alleged the claims, it behooved the claimant to prove each and every claim evidentiary. The claimant was bound to discharge the burden of proof to the required standard his entitlement to each prayer. He did not. It is trite law he who alleges shoulders the burden of proof as ordained by the provisions of Sections 107, 108 and 109 of the Evidence Act. Similarly, as held by **Abuodha J in Nicholus Kipkemoi Korir v Hatavi Security Guards Ltd (2016) KEELRC 1044 (KLR)** *“The burden of proof does not become any less on the employee simply because the employer has not defended the claim or absent at the trial. The claimant must still his or her case. It is therefore not enough for the employee to simply make allegations on oath or in the pleadings which are not backed by any evidence and expect the court to find in his or her favour”* None of the figures indicated had supportive or verifiable evidence and being claims in the nature of special damages, they had to be specifically pleaded and strictly proved (see **Hahn v Singh (1985) KLR 716**, **Richard Okulu Oloo v South Nyanza Sugar Co Ltd (2013) eKLR and Ngatia & 5 others v University of Nairobi (2023) KEELRC 2244 (KLR) Securicor (K) Ltd v Esther Oliech (1996) KECA 89 (KLR) and Nimo Ali v Sagoo Radiators Ltd (2013) KECA 163 (KLR)** among others. What the claimant did was throw figures to the court to award as allowances, without any iota of evidence. In a nutshell claim (i), (ii), (iii), (iv) and (v) were unproved and are dismissed. On compensation, having found that the termination of employment was unfair procedurally but the employer had a reason to dismiss the claimant summarily, and bearing in mind that the claimant had only worked for about 3 years and appealed the decision, the equivalent of two (2) months salary would have been fair compensation. On service pay, it is unclear as to how the figure of Kshs.516,780 was arrived at and related to what period since the claimant was not a member of the NSSF then he would have been awarded service pay under Section 35 of the Employment. He may still be entitled to pension for the years he served. The claimant is entitled to a Certificate of Service by dint of section 51 of the Employment Act and the same should be availed within 45 days. Having struck out the suit for want of jurisdiction, parties shall bear their own costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 31ST JULY, 2026.** **DR. JACOB GAKERI** **JUDGE** **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **DR. JACOB GAKERI** **JUDGE**