[2018] KEELRC 1177 (KLR)
The court held that the petition, though framed as a constitutional petition, was fundamentally based on the termination of the petitioner's contract of service in 1997. The suit was filed more than 21 years after the cause of action arose, far exceeding the six-year limitation period prescribed for contractual...
Source-derived case information.
- Citation
- [2018] KEELRC 1177 (KLR)
- Parties
- Petitioner: Vasiya Nahashon Indimuli; Respondent: Teachers Service Commission; Respondent: Ibrahim Walingo
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 31 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- petition dismissed for want of jurisdiction as statute-barred
- Judges
- MN Nduma
- Legal Topics
- Limitation of Actions, Unlawful Termination, Disciplinary Procedure, Jurisdiction, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vasiya Nahashon Indimuli
Petitioner
Teachers Service Commission
Respondent
Ibrahim Walingo
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the petition is time-barred under the Limitation of Actions Act.
- 2 Whether the court has jurisdiction to entertain the petition after expiry of the limitation period.
- 3 Whether the petition constitutes an abuse of court process.
Ratio Decidendi
The court held that the petition, though framed as a constitutional petition, was fundamentally based on the termination of the petitioner's contract of service in 1997. The suit was filed more than 21 years after the cause of action arose, far exceeding the six-year limitation period prescribed for contractual claims under section 4(1) of the Limitation of Actions Act. The court found that limitation is a jurisdictional issue, and once established, the court is divested of authority to hear the matter. The petition was therefore statute-barred, constituted an abuse of court process, and the petitioner was non-suited. The court dismissed the petition with costs for want of jurisdiction.
Court Disposition
petition dismissed for want of jurisdiction as statute-barred
Orders
- The petition is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
PETITION NO. 31 OF 2018
(Before Hon. Justice Mathews N. Nduma)
VASIYA NAHASHON INDIMULI ....................................................PETITIONER
VERSUS
TEACHERS SERVICE COMMISSION...................................1ST RESPONDENT
IBRAHIM WALINGO................................................................2ND RESPONDENT
R U L I N G
1. The Petitioner was dismissed from employment and removed from the register of teachers on 24th February, 1997 on grounds of having carnal knowledge of his standard six (6) pupil which resulted into pregnancy. The dismissal followed charges made against the petitioner; interdiction on 27th July, 1996 and a disciplinary hearing held on 24th February, 1997.
2. The decision by the Respondent was communicated to the Petitioner on 6th November, 1997.
3. The Petition dated 16th March, 2018 was filed in court on 21st March, 2018, over 21 years after the cause of action arose.
4. In terms of section 4(1) of the Limitation of Action, Act Cap 22 Laws of Kenya;
“The following actions may not be brought after the end of six years from the date of which the cause of action accrued:-
(a)actions founded on contract;
(b)actions to enforce a recognizance;
(c)actions to enforce an award;
(d)actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;
(e) actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law.’’
5. This suit, disguised as a constitutional petition is founded on the termination.
6. In the present case, counsel for the Respondent Oyucho Timon, filed a notice of preliminary objection dated 30th April, 2018 on 7th May, 2018. The Respondent filed submissions on the Preliminary objection on 7th May, 2018. The Petitioner filed submissions on the preliminary objection dated 6th June, 2018 on 11th June, 2018.
7. Having considered the Preliminary Objection to the Petition as filed together with the submissions filed, I am of the conclusive opinion that the suit as filed is based on the termination of a contract of service between the Petitioner and the Respondent on 24th February, 1997 on allegation of sexual misconduct by the Petitioner against his female student.
8. The dismissal followed a disciplinary hearing held on 24th February, 1997 and the decision to dismiss the Petitioner communicated to him on 6th November, 1997.
9. In Thuranira Karauri v Agnes Ncheche [1997]eKLR, the Court of Appeal held;
“As the issue of limitation goes to jurisdiction we shall deal with it first. …………….. We do not understand how the judge could proceed with the trial without finally determining such as important point of jurisdiction. …….. the defence stood, and the plaintiff should have been non-suited forever. ………….. This finding alone is sufficient to dispose of the appeal.”
10. The Civil Claim instituted by the Petitioner after expiry of 21 years is statutory barred. It is a gross abuse of the court process. The Petitioner is non-suited and the court lacks jurisdiction to entertain this Petition and the same is dismissed with costs.
Ruling Dated, Signed and delivered this 20th day of September, 2018
Mathews N. Nduma
Judge
Appearances
Oyucho Timon Advocate for the Respondent/Objector
Momanyi Manyoni & Co. Advocates for the Petitioner
Chrispo – Court Clerk