[2024] KEELRC 575 (KLR)
The court found that the claimant's cause of action arose from a dismissal whose appeal was dismissed on 02.02.2018. Under section 90 of the Employment Act, any claim arising from dismissal or termination must be filed within three years. The claimant filed the suit on 08.09.2023, well outside the statutory...
Source-derived case information.
- Citation
- [2024] KEELRC 575 (KLR)
- Parties
- Applicant: Boniface Muendo Makewa; Respondent: Teachers Service Commission; Respondent: Director of Pension
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Cause 8 of 2023
- Procedural Posture
- Preliminary Objection / Ruling
- Outcome
- preliminary objection upheld; claim dismissed as statute barred
- Judges
- B Ongaya
- Legal Topics
- Limitation Periods, Unlawful Dismissal, Statutory Bar, Employment Act Section 90
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Muendo Makewa
Applicant
Teachers Service Commission
Respondent
Director of Pension
Respondent
Procedural Posture
Preliminary Objection / Ruling
Legal Issues
- 1 Whether the claim is statute barred under section 90 of the Employment Act, 2007.
- 2 Whether a constitutional remedy can override statutory limitation periods.
Ratio Decidendi
The court found that the claimant's cause of action arose from a dismissal whose appeal was dismissed on 02.02.2018. Under section 90 of the Employment Act, any claim arising from dismissal or termination must be filed within three years. The claimant filed the suit on 08.09.2023, well outside the statutory limitation period. The court held that the attempt to frame the claim as a constitutional remedy did not override the clear statutory bar. The claim was therefore time barred and constituted an abuse of process. The preliminary objection was upheld and the claim dismissed.
Court Disposition
preliminary objection upheld; claim dismissed as statute barred
Orders
- The petition is dismissed as statute barred.
- Each party to bear own costs of the proceedings.
Full Case Text
Judgment text and source record
21 paragraphs
Makewa v Teachers Service Commission & another (Cause 8 of 2023) [2024] KEELRC 575 (KLR) (15 March 2024) (Ruling)
Neutral citation: [2024] KEELRC 575 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Machakos
Cause 8 of 2023
B Ongaya, J
March 15, 2024
Between
Boniface Muendo Makewa
Claimant
and
Teachers Service Commission
1st Respondent
Director of Pension
2nd Respondent
Ruling
1. The 1st Respondent herein filed the Preliminary Objection dated 15. 11. 2023 through Sylvia Ngere, Advocate for TSC pursuant to the provisions of Section 90 of the Employment Act, 2007 on grounds of law that the Claim herein dated 5th September, 2023 is statute barred.
2. The 1st Respondent argued the preliminary objection orally in court on 08. 03. 24. Counsel submitted that the claim is statutory barred since the claim was filed on 08. 09. 23 after the lapse of 3 years as provided for in section 90 of the Employment Act.
3. That there was an appeal dismissed on 02. 02. 2018 and therefore time lapsed on 02. 02. 21.
4. The claimant stated that what they are seeking is a constitutional remedy and hence are not time barred and rely on their written submissions.The Court has considered the preliminary objection and parties’ respective positions. Section 90 of the Employment Act provides that for a claim based on dismissal or termination, the suit must be filed within three years from the date of such termination or dismissal. The petitioner’s claim is based on the decision of dismissal with loss of pension. Obviously, the cause of action is time barred and the petition is merely calculated to avoid the time barring. It is an abuse of process. The petition is hereby dismissed with orders each party to bear own costs of the proceedings and file be returned to Machakos sub registry.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS FRIDAY 15TH MARCH 2024. BYRAM ONGAYAPRINCIPAL JUDGE