[2017] KEELRC 1098 (KLR)
The court held that in employment relationships governed by internal disciplinary and appellate procedures, the limitation period under Section 90 of the Employment Act commences upon the final decision of the appellate body, not the initial dismissal. This approach preserves the utility of the internal appeal...
Source-derived case information.
- Citation
- [2017] KEELRC 1098 (KLR)
- Parties
- Claimant: Rabasa Onyango; Respondent: Teachers Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1714 of 2014
- Procedural Posture
- Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled; suit to proceed to trial on merit
- Judges
- DI Wasike
- Legal Topics
- Limitation Periods, Internal Disciplinary Process, Employment Termination, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Rabasa Onyango
Claimant
Teachers Service Commission
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is statute barred under Section 90 of the Employment Act.
- 2 When does time begin to run for limitation purposes in employment dismissal cases involving internal appeals.
Ratio Decidendi
The court held that in employment relationships governed by internal disciplinary and appellate procedures, the limitation period under Section 90 of the Employment Act commences upon the final decision of the appellate body, not the initial dismissal. This approach preserves the utility of the internal appeal process and prevents premature litigation before exhaustion of internal remedies. Since the claimant's appeal was determined on 4th January 2012 and the suit was filed on 2nd October 2014, the claim was within the statutory limitation period. The preliminary objection on limitation was therefore overruled.
Court Disposition
preliminary objection overruled; suit to proceed to trial on merit
Orders
- The respondent's preliminary objection is overruled.
- The matter shall proceed to trial on merit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1714 OF 2014
RABASA ONYANGO……..……………........……CLAIMANT
VERSUS
TEACHERS SERVICE COMMISSION..….....RESPONDENT
RULING
1. The respondent in this matter has objected to the jurisdiction of the court to entertain this suit on the basis that the same is statute barred by virtue of Section 90 of the Employment Act.
2. According to counsel for respondent, the claimant after undergoing internal disciplinary process was found guilty of the charges against him and dismissed on 1st October 2010. The suit challenging the dismissal therefore ought to have been brought by 1st October 2013.
3. The suit herein was filed on 2nd October 2014 which the respondent argue is more than a year outside the statutory bar.
4. Counsel for the claimant on the other hand contended that the cause of action accrued 4th January 2012 when the respondent advised the claimant that his appeal against the dismissal had no merit.
5. Employment relationship is contractual and where the parties to that contract have agreed to conduct their affairs within the dictates of that contract the court will unless for breach of the law or the constitution be reluctant to interfere.
6. The respondent has its own code of regulation which provides for a system and process of appeal against the dismissal of a teacher. A teacher aggrieved by the decision at the first instance to dismiss has the right of appeal. Whereas the dismissal stands unless overturned on appeal, its finality accrues upon the upholding of the same by the appellate body.
7. It is upon the decision of the appellate body that time begins to run against the employee in terms of Section 90 of the Employment Act. To reckon time for purposes of limitation, from the date of the initial dismissal would render purposeless, the appellate process. An employee approaching the court before exhausting the internal disciplinary process would be doing so prematurely.
8. The court therefore overrules the objection and directs that the matter shall proceed to trial on merit.
9. It is so ordered.
Dated at Nairobi this 16th day of June 2017
Abuodha J. N.
Judge
Delivered at Nairobi this 16th day of June 2017
In the presence of:-
Okwaro for the Claimant
No appearance for the Respondent
Abuodha J. N.
Judge