[2025] KEELRC 143 (KLR)
The court held that section 90 of the Employment Act, 2007 provides a strict limitation period of three years for employment claims, and there is no statutory discretion to extend this period. The applicant's cause of action accrued on the date of dismissal, not at the conclusion of the internal appeal. The internal...
Source-derived case information.
- Citation
- [2025] KEELRC 143 (KLR)
- Parties
- Applicant: Sammy Thuranira Mucheke; Respondent: Teachers Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E294 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enlarge Time
- Outcome
- application dismissed
- Judges
- S Radido
- Legal Topics
- Limitation Periods, Unfair Dismissal, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Thuranira Mucheke
Applicant
Teachers Service Commission
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Enlarge Time
Legal Issues
- 1 Whether the court has discretion to enlarge time for filing a suit out of time under section 90 of the Employment Act, 2007.
- 2 Whether the applicant's cause of action accrued at the time of dismissal or at the conclusion of the internal appellate process.
Ratio Decidendi
The court held that section 90 of the Employment Act, 2007 provides a strict limitation period of three years for employment claims, and there is no statutory discretion to extend this period. The applicant's cause of action accrued on the date of dismissal, not at the conclusion of the internal appeal. The internal appellate process did not suspend or extend the limitation period. The court relied on binding precedent and statutory interpretation to conclude that it lacked jurisdiction to grant leave to file the suit out of time. Consequently, the application for enlargement of time was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 7 October 2024 is dismissed with no order as to costs.
- The Deputy Registrar to serve a copy of this Ruling upon the Respondent.
Full Case Text
Judgment text and source record
33 paragraphs
Mucheke v Teachers Service Commission (Miscellaneous Application E294 of 2024) [2025] KEELRC 143 (KLR) (30 January 2025) (Ruling)
Neutral citation: [2025] KEELRC 143 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Miscellaneous Application E294 of 2024
S Radido, J
January 30, 2025
Between
Sammy Thuranira Mucheke
Applicant
and
Teachers Service Commission
Respondent
Ruling
1. Sammy Thuranira Mucheke (applicant) was dismissed through a letter dated 21 May 2021 by the Teachers Service Commission (the Respondent).
2. The applicant appealed and the decision on the appeal was made on or around 9 March 2022.
3. On 9 October 2024, the applicant moved the Court seeking orders:i.That this Honourable Court be pleased to enlarge time and grant the applicant leave to file and proceed with the suit herein out of time against the Respondent.ii.That the costs be in the cause.
4. The singular reason given by the applicant in seeking leave is that the conclusion of the internal appellate process caused the delay in moving to Court.
5. The Court gave directions on 18 November 2024, and the applicant filed his submissions on 17 December 2024.
6. In the submissions, the applicant cited Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 Ors (2014) eKLRto urge that the Court had an equitable discretion to extend time.
7. By dint of section 90 of the Employment Act, 2007, the applicant had 3 years within which to challenge the dismissal. The applicant was dismissed on 21 May 2021. He had up to 20 May 2024 to commence legal action.
8. The appellate process invoked by the applicant was concluded on 9 March 2022.
9. The applicant has not explained why he did not institute legal proceedings immediately after the conclusion of the appellate process.
10. Nevertheless, the question is whether the Court has the discretion to extend time or grant leave as sought by the applicant.
11. The answer is that the Court has no such discretion.
12. In Divecon v Samani (1995)-1998) EA 48 the Court of Appeal held:to us, the meaning of the wording of section 4(1) ……is clear beyond any doubt. It means that no one shall have the right or power to bring after the end of six years from the date on which a cause of action accrued, an action founded on contract. The corollary to this is that no court may or shall have the right or power to entertain what cannot be done namely, an action that is brought in contract six years after the cause of action arose or any application to extend such time for the bringing of the action……A perusal of Part III shows that its provisions do not apply to actions based on contract. In light of these clear statutory provisions, it would be unacceptable to imply as the learned Judge of the Superior Court did, that ‘‘the wording of section 4(1) of the Limitation of Actions Act (Chapter 22) suggests a discretion that can be invoked.
13. In this Court’s view, the interpretation given in respect to section 4(1) of the Limitation of Actions Act applies with equal force to actions implicated by section 90 of the Employment Act, 2007.
14. In Attorney General & Ar v Andrew Maina Githinji & Ar (2016) eKLR the majority Court of Appeal stated: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 been placed before them in the disciplinary proceedings and they could have filed legal proceedings if they felt aggrieved by that dismissal, but they did not.
15. The applicant’s cause of action accrued at the time of dismissal and not conclusion of the internal appellate process. He should have moved the Court on or before 20 May 2024. He did not.
16. This Court has no power to extend time or grant leave to file Cause out of time.
Orders 17. The application dated 7 October 2024 is dismissed with no order on costs.
18. For the record, the Deputy Registrar to serve copy of this Ruling upon the Respondent.
DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI ON THIS 30THDAY OF JANUARY 2025. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor applicant Mwenda A.K. & Co. AdvocatesCourt Assistant Wangu