Case ID:173443

Alice Njambi Mutura v Principal Secretary, Ministry of Health & another [2021] eKLR

Case Metadata

Case Number:

Petition E047 of 2020

Parties:

Alice Njambi Mutura v Principal Secretary, Ministry of Health & Attorney-General

Date Delivered:

09 Apr 2021

Case Class:

Civil

Court:

Employment and Labour Relations Court at Nairobi

Case Action:

Ruling

Judge(s):

James Rika

Citation:

Alice Njambi Mutura v Principal Secretary, Ministry of Health & another [2021] eKLR

Court Division:

Employment and Labour Relations

County:

Nairobi

Case Outcome:

Preliminary Objection is rejected

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR

RELATIONS COURT

AT NAIROBI

PETITION NO. E047 OF 2020

BETWEEN

ALICE NJAMBI MUTURA...................................................PETITIONER

VERSUS

1. PRINCIPAL SECRETARY, MINISTRY OF HEALTH

2. THE HON. ATTORNEY- GENERAL..........................RESPONDENTS

RULING

1. The Petitioner filed her Petition on 19

th

September 2020. She was employed by the Ministry of Health on 10

th

January 1989 as a Nurse.

2. She received a letter dated 5

th

May 2017 from the 1

st

Respondent, alleging that she had not been on duty, since 3

rd

January 2017.

3. She explained that she was kept away by illness.

4. She received a letter from the 1

st

Respondent, dated 5

th

December 2017, dismissing her with effect from 3

rd

January 2017.

5. She filed this Petition seeking various declaratory orders under the Constitution of Kenya, and seeking in main, reinstatement.

6. The Respondents filed a Notice of Preliminary Objection, stating that the Petitioner’s cause of action is time-barred under Section 90 of the Employment Act, which places a time-bar of 3 years from the date of termination, on causes brought under contracts of employment regulated by the Employment Act 2007. It is submitted by the Respondents, that the Petition is an ordinary Claim, which is made as a Petition, with the intention of circumventing the time-bar, under Section 90 of the Employment Act.

The Court Finds

:

-

7. There is no agreement on relevant dates.

8. The Petitioner submits that the Petition was filed on 8

th

September 2020. The Respondent submits that the Petition was filed on 11

th

November 2020. The stamp of the Court on receiving the Petition, indicates the filing date as 19

th

September 2020.

9. The Petitioner states she received a letter dated 5

th

December 2017, dismissing her with effect from 3

rd

January 2017. She has not exhibited the letter of dismissal in her Petition.

10. If indeed she received the letter on 5

th

December 2017, her contract of employment would be deemed to have been terminated on the date she received communication about termination - 5

th

December 2017. It cannot have been January 2017. Termination does not take effect until the letter, or notice of termination is in the hands of the Employee. It cannot be retroactive. The Petitioner could not have taken any action in January 2017, without knowledge of the decision to terminate her contract.

11. The Respondents have not disputed the date their letter of dismissal was received by the Petitioner.

12. The Petition does not appear to the Court to be time-barred. The letter of dismissal having been received by the Petitioner in December 2017, the cause of action was alive and well on any date suggested to be the filing date- 8

th

September 2020, 19

th

September 2020 or even 11

th

November 2020.

IT IS ORDERED

: -

a. The Preliminary Objection is rejected.

b. Costs in the cause.

DATED AND SIGNED AT CHAKA, NYERI COUNTY, UNDER MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 9

TH

DAY OF APRIL 2021

JAMES RIKA

JUDGE