The claimant filed his Memorandum of Claim on 8 August 2023 on the basis that he was prematurely retired by the respondent on 30 June 2019. He is a person with a disability and should be re-enlisted back to work and paid all his salaries and allowances until the age of 65.
In response, the respondent filed a Notice of Preliminary Objections dated 23 January 2024 on the basis that the claim herein is time-barred under Sections 3(2) and 3(3) of the Public Authorities Act.
In response to the objections, the claimant the declining letter for his re-enlistment is dated 1st February 2022 and the cause of action only started running on 1st February 2022. The issue of the claim being time-barred does not apply.
Both parties attended before the court at Nairobi on 4 April 2024 and directions were issued to address the objections by way of written submissions. Parties complied and the ruling was reserved for 10 July 2024 and the matter was transferred to Mombasa.
The ruling herein relates to the objections by the respondent.
The respondent submitted that the suit should be dismissed because it was filed 4 years and 1 month after the cause of action arose on 30th June 2019, with no explanation for the delay. The Respondent, being a public officer under the Ministry of Defence, was sued through the Attorney General.
Under Section 3(2) of the Public Authorities Limitation Act, claims based on a contract against the Government or local authorities must be filed within three years from the date the cause of action accrued. Since the claim arose on 30th June 2019 and the suit was filed on 8th August 2023, it is time-barred. Section 2(2) of the Public Authorities Limitation Act also includes proceedings against public officers as proceedings against the Government. The claimant was discharged on 30th June 2019 upon reaching the retirement age of 58 as per Kenya Defence Forces Terms and Conditions of Service and should have filed the suit no later than 30th June 2022. The delay renders the court without jurisdiction to hear the matter.
In the case of Peris Maina v Nairobi City Water & Sewerage Company Limited (2018) eKLR, the court held that the administrative appeal proceedings did not postpone or adjourn the running of the time of limitation after the dismissal. This position was affirmed in the case of Hilarion Mwabolo v Kenya Commercial Bank (2013) eKLR, where the court held that termination kicks in from the date stated in the letter of termination. Cause No 953 of 2010 Benjamin Wachira Ndiithi v Public Service Commission & another (2014) eKLR, the Court held that the fact that an employee whose employment has been terminated seeks a review or an appeal does not mean that accrual of the cause of action is held in abeyance until a final verdict on the review or appeal.
In the case of Gathoni v Kenya Co-operative Creameries Ltd [1982) eKLR the Court held that;
The law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest. Special provision is made for infants and for the mentally unsound. But, rightly or wrongly, the Act does not help persons like the applicant who, whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done.
The claimant opposed the Preliminary Objection on the basis that the cause of action began after receiving a rejection letter dated 1st February 2022, in which the Navy Commander declined the request for re-enlistment on the grounds of disability, which the claimant argues is untrue. Therefore, filing a suit before that date was premature. The cause of action arose in February 2022, when the rejection letter was issued.
Further, the nationwide lockdowns during the COVID-19 pandemic in 2020 and 2021 caused significant delays and disruptions, which slowed the claimant's ability to pursue his case. The claimant also sought to exhaust military procedures before approaching the court, including waiting for a decision from the Navy Commander.
In September 2018, the claimant requested a meeting with the base commander to adjust his retirement date under the Persons with Disabilities Act, 2003, and the Human Resource Policy and Procedure Manual for Public Service, 2016. Although the meeting was approved, no appointment was provided, and the grievances remained unresolved.
The claimant disputes the respondent's witness testimony, arguing that public service includes the civil service, and the failure to follow government policies should not justify dismissing the claim.
The respondent's actions confirm knowledge of the claimant’s disability and the adjusted retirement age for persons with disabilities from 60 to 65 years, yet the claimant’s re-enlistment request was ignored and deemed meritless, causing unnecessary suffering.
The claimant argues that this case arose because the Navy Commander unlawfully refused to allow the claimant, a person with a disability, to serve the additional five years permitted under the law, which sets the retirement age for PWDs at 65 years instead of 60 years for others.
The claimant asserts that the respondent exploited procedural delays and the claimant's lack of knowledge to deny justice by rejecting the re-enlistment request. Discharging the claimant at 58 years instead of 65 years, as mandated by law, caused severe financial, emotional, and psychological suffering to the claimant and his dependents, despite the claimant's 35 years of service under conditions that lacked recognition and protection for persons with disabilities.
Determination
As a settled principle of law, preliminary objections are considered only if they align with the requirement that they raise pure questions of law capable of disposing of the dispute without delving into contested facts that demand the calling of evidence. See Mukisa Biscuit Manufacturers Ltd vs Westend Distributors Ltd, (1969) E A 696.
Section 3(2) of the Public Authorities Limitations Act provides as follows;
No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the course of action accrued.
Section 3(3) of the Act provides that;
(3) Where the defence to any proceedings is that the defendant was at the material time acting in the course of his employment by the Government or a local authority and the proceedings were brought after the end of—
(a) twelve months, in the case of proceedings founded on tort; or
(b) three years, in the case of proceedings founded on contract,
from the date on which the cause of action accrued, the court, at any stage of the proceedings, if satisfied that such defendant was at the material time so acting, shall enter judgment for that defendant.
The provisions of Section 3(2) and (3) of the Public Authorities Limitations Act are not far removed from those of Section 89 of the Employment Act. an employment claim must be addressed within 3 years from the date the cause of action arose and for a continuing injury, such action must be addressed within 12 months from the date of cessation as held in the case of Benja Properties Limited v Syedna Mohammed Burhannudin Sahed, Mohammed Fidaali Hebatullah, Huseesinbahal Ahemdali Hebatullah, Attorney General & Commissioner For Lands [2015] KECA 457 (KLR).
The claimant was employed by the respondent as a vehicle mechanic. He claims that he was forced to resign on 30 June 2019 but as a person with disability, he should have worked until the age of 65 and should therefore be re-enlisted.
In response, the respondent’s case is that the claimant was lawfully discharged from service upon completion of colour service. He was employed under the Kenya Defence Forces Act, Defence Terms and Conditions and Defence Standing Orders. Based on the Birth Certificate, the claimant attained 61 years on 8 August 2023. Under the Service Orders, the claimant was eligible for discharge at the age of 58 which ran out on 30 June 2019. Under his appointment, any claim accruing therefrom should have been addressed within 3 years under the provisions of Section 3 of the Public Authorities Limitation Act as held in the case of Anaclet Kalia Musau (suing on behalf of the Estate of Vincent Mangalo Kalia (Deceased) v Attorney General & 2 others [2015] eKLR.
Indeed, a claim arising out of employment must be addressed within 3 years from the date the cause of action arose. The court has no discretion to extend time beyond the 3 years because Section 89 of the Employment Act is stated in mandatory terms.
In the case of Peter Ndegwa Nderitu v Teachers Service Commission [2019] eKLR the court held that even where the court is moved under a constitutional petition, an employment claim is regulated in law and must be addressed within 3 years. See Maxwell Sifuna v Teachers Service Commission [2022] KEELRC 503 (KLR)
In this case, the claimant served until 30 June 2019. His claims for salaries and re-enlistment with the respondent where justified should have been addressed on or before 31st May 2022. He filed his claim on 8 August 2023 way after the time to file such claims had lapsed. A claim is time-barred and denies this court jurisdiction. It cannot be revised through the discretion of the court as the provisions of Section 89 of the Employment Act are mandatory.
These provisions are reinforced under Section 3 of the Public Authorities Limitation Act. The fact that the claimant is registered as a person with a disability does not create an exception under Section 89 of the Employment Act read together with Section 3 of the Public Authorities Limitation Act.
Objections dated 23 January 2024 by the respondent are with merit. The court has no jurisdiction to hear and determine a claim that is time-barred.
The claimant is acting in person. He should not be penalized for costs.
The suit is hereby struck out. Each party bears its costs.
Delivered in open court at Mombasa this 18th day of December 2024.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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