Mshambala & 6 others (Suing in Their Capacity as National Executive Committee Officials and Also on Behalf of all Members of the Retired & About to Retire Members Welfare Association) v Teachers Service Commission [2025] KEELRC 1852 (KLR)
- Citation
- [2025] KEELRC 1852 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Employment and Labour Relations Court
- Panel
- B Ongaya
- Case number
- Petition E030 of 2025
- Language
- English
More details
- Court
- Employment and Labour Relations Court
- Panel
- B Ongaya
- Case number
- Petition E030 of 2025
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the petitioners' cause of action, seeking salary arrears from 1996 to 2010, accrued in 2010 when the salaries were harmonised. The petitioners failed to move the court within the statutory limitation period prescribed by section 89 of the Employment Act, which requires claims based on employment contracts to be filed within twelve months of cessation of a continuing injury or within three years for other employment contract claims. The court determined that the petitioners attempted to circumvent these limitation periods by framing their contractual claim as a constitutional petition, thereby invoking the doctrine of constitutional avoidance. No legitimate justification for the delay was pleaded. Consequently, the preliminary objection was upheld, and the petition was struck out as time barred and an abuse of process.
Court disposition
preliminary objection upheld; petition struck out
Orders
- The petition is struck out.
- Each party to bear own costs of the petition and the preliminary objection.
02
Material facts
Parties
Kepha W. Mshambala
Applicant Counsel: Kirui Kamwibua & Company AdvocatesJoshua Ngore Kiambati
Applicant Counsel: Kirui Kamwibua & Company AdvocatesGichana Isaac Manduku
Applicant Counsel: Kirui Kamwibua & Company AdvocatesFrancis TKC Tonui
Applicant Counsel: Kirui Kamwibua & Company AdvocatesDavid Thaguambi
Applicant Counsel: Kirui Kamwibua & Company AdvocatesRuth W. Kabui
Applicant Counsel: Kirui Kamwibua & Company AdvocatesSimon K. Masila
Applicant Counsel: Kirui Kamwibua & Company AdvocatesTeachers Service Commission
Respondent Counsel: Cavin Anyuor03
Procedural history
Posture
Constitutional Petition / Ruling on Preliminary Objection
04
Questions and positions
Legal issues
- 01
Whether the petition is time barred under section 89 of the Employment Act and section 4(1) of the Limitation of Actions Act.
- 02
Whether the court has jurisdiction to hear and determine the petition.
- 03
Whether the petition amounts to an abuse of court process by disguising a contractual claim as a constitutional petition.
- 04
Whether the doctrine of constitutional avoidance applies to the present petition.
Party arguments
- Applicant
- The petitioners argued that their claim for salary arrears from 1996 to 2010 is meritorious and should be heard on its substantive merits. They contended that the preliminary objection should be dismissed and the court should proceed to determine the petition, asserting that their rights had been violated and that the delay was justified by the nature of the claim.
- Respondent
- The respondent argued that the petition is bad in law, incurably defective, frivolous, vexatious, and an abuse of court process. They submitted that the claim is time barred under section 89 of the Employment Act and section 4(1) of the Limitation of Actions Act, that the court lacks jurisdiction, and that the petitioners are attempting to circumvent statutory limitation periods by framing a contractual claim as a constitutional petition.
05
Court’s reasoning
Legal principles
- 01
Section 89, Employment Act; Section 4(1), Limitation of Actions Act
Claims based on employment contracts must be brought within the limitation periods prescribed by section 89 of the Employment Act and section 4(1) of the Limitation of Actions Act.
- 02
Doctrine of constitutional avoidance; case law referenced by the court
The doctrine of constitutional avoidance requires that where a dispute can be resolved on the basis of statute or private law, constitutional remedies should not be invoked.
- 03
Civil Procedure principles; Employment and Labour Relations Court practice
A petition that is time barred or brought in abuse of process may be struck out at a preliminary stage.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the petitioners' cause of action, seeking salary arrears from 1996 to 2010, accrued in 2010 when the salaries were harmonised. The petitioners failed to move the court within the statutory limitation period prescribed by section 89 of the Employment Act, which requires claims based on employment contracts to be filed within twelve months of cessation of a continuing injury or within three years for other employment contract claims. The court determined that the petitioners attempted to circumvent these limitation periods by framing their contractual claim as a constitutional petition, thereby invoking the doctrine of constitutional avoidance. No legitimate justification for the delay was pleaded. Consequently, the preliminary objection was upheld, and the petition was struck out as time barred and an abuse of process.
Obiter and limits
- Parties appear to continue in employment relationship or some petitioners may have retired; to balance justice, each will bear own costs.
- While alleging discrimination, the primary claim is for arrears accruing in the contract of service and no legitimate bar to file proceedings within the prescribed time of limitation has been pleaded.
Court disposition
preliminary objection upheld; petition struck out
- The petition is struck out.
- Each party to bear own costs of the petition and the preliminary objection.
Source and reliance status
Employment and Labour Relations Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Employment and Labour Relations Court
Judgment
Mshambala & 6 others (Suing in Their Capacity as National Executive Committee Officials and Also on Behalf of all Members of the Retired & About to Retire Members Welfare Association) v Teachers Service Commission (Petition E030 of 2025) [2025] KEELRC 1852 (KLR) (26 June 2025) (Ruling)
Neutral citation: [2025] KEELRC 1852 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Petition E030 of 2025
B Ongaya, J
June 26, 2025
Between
Kepha W. Mshambala
1st Petitioner
Joshua Ngore Kiambati
2nd Petitioner
Gichana Isaac Manduku
3rd Petitioner
Francis TKC Tonui
4th Petitioner
David Thaguambi
5th Petitioner
Ruth W. Kabui
6th Petitioner
Simon K. Masila
7th Petitioner
Suing in Their Capacity as National Executive Committee Officials and Also on Behalf of all Members of the Retired & About to Retire Members Welfare Association
and
Teachers Service Commission
Respondent
Ruling
1. In response to the petition dated 05. 03. 2025, the respondent filed a notice of preliminary objection dated 16. 05. 2025 through Cavin Anyuor, Advocate. It prayed that the petition be struck out with costs to the respondent on the grounds that:i.The petition before Court is bad in law, incurably defective, frivolous, vexatious and amounts to gross abuse of the court process.ii.Pursuant to the provisions of section 89 of the Employment Act, the petition before the Honourable Court is time barred and the same ought to be struck as a matter of course.iii.Pursuant to the provisions of section 4[1] of the Limitation of Actions Act, the subject matter set out in the instant petition before Court is time barred and statutorily defective.iv.The Honourable Court has no jurisdiction to hear and determine the petition.v.The petition before Court offends the doctrine of constitutional avoidance. The subject matter being promotion of teachers is premised on a contract of employment under the ambit of private law. The same is disguised as a constitutional petition to avoid the rigors of statute law, specifically section 89 of the Employment Act read together with section 4[1] of the Limitation of Actions Act.vi.The cause of action having arisen in 1996, the petition before Court is beleaguered by undue and inordinate delay hence an afterthought. The same is an abuse of the Court’s process.
2. In support of the notice of preliminary objection, the respondent filed its submissions dated 26. 05. 2025.
3. The petitioners filed submissions dated 04. 06. 2025 through Kirui Kamwibua & Company Advocates. They urged the Honourable Court to dismiss the notice of preliminary objection dated 16. 05. 2025 and proceed to deal with the petition substantively on its merits.
4. The Court returns as follows:a.The petition s for the prayer that the petitioners are entitled to salary arrears from the year 1996 to 2010 when the salaries were harmonised. It appears to the Court that the petitioners’ cause of action accrued sometimes in 2010 and for unexplained reasons they did not move the Court until the filing of the instant petition. As urged for the respondent, the cause of action was time barred under section 89 of the Reemployment Act prescribing 12 months of limitation from cessation of a continuing injury [like the instant cause of action] or three years in other cause of actions based on the employment contract. The claimed arrears stopped accruing or were due for payment on monthly basis but the claimants appear to have failed to move the Court promptly within the prescribed time of limitation.b.It therefore appears to the Court that the petitioners invoked the way of a petition to circumvent the time of limitation prescribed in the Act and if an ordinary cause were to be filed. The petition appears to the Court trapped with the avoidance doctrine as urged for the respondent. While alleging discrimination, the primary claim is for arrears accruing in the contract of service and no legitimate bar to file proceedings within the prescribed time of limitation has been pleaded.c.Accordingly, the preliminary objection is upheld. Parties appear to continue in employment relationship or some petitioners may have retired. To balance justice for parties, each will bear own costs of the petition and preliminary objection.
5. In conclusion the preliminary objection will succeed upon the findings herein with orders:1. The petition is struck out.2. Each party to bear own costs of the petition and the preliminary objection.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS THURSDAY 26THJUNE, 2025. BYRAM ONGAYA,PRINCIPAL JUDGE
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