Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 62 of 2016· [2017] KECA 173 (KLR)

Clement Ernest Opiyo Murenga v Principal Secretary, Treasury & Commissioner of Customs, Kenya Revenue Authority (Civil Appeal 62 of 2016) [2017] KECA 173 (KLR)

Court of Appeal
20 July 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
3,081 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal reinstated a worker's constitutional petition, ruling it cannot be dismissed as time-barred because limitation was never pleaded and rights violations were continuing.

What this practically means

#

Executive summary

#
The appellant, a former customs employee, filed a constitutional petition alleging violations of his rights arising from the failure to communicate his employment status after his acquittal in a criminal charge in 1983. The petition, originally filed in the High Court at Busia, was transferred to the Employment and Labour Relations Court at Kisumu. At a mention fixed for obtaining a judgment date, the 2nd respondent was granted leave to file a preliminary objection and a Notice of Motion on limitation. The learned judge (Onyango J) dismissed the appellant's petition in its entirety, holding that the 2nd respondent was improperly joined, that the petition was not a true constitutional petition, and that the claim arising from termination of employment in 1985 was time barred under the Public Authorities Limitation Act and section 90 of the retired Employment Act. The Court of Appeal allowed the appeal. It held that the judge misapprehended the status of the proceedings, which were closed and awaiting a judgment date, and erred in permitting the belated limitation application; that limitation must be specifically pleaded under order 2 rule 4(1) of the Civil Procedure Rules and was absent from the 2nd respondent's pleadings and submissions; and that no limitation period applies to constitutional petitions, particularly where continuing violations are alleged. The Court set aside the dismissal, reinstated the suit, and remitted it for hearing on its merits before another judge of the Employment and Labour Court, excluding Onyango J. Each party was ordered to bear its own costs in the appeal. The binding propositions concern appellate interference with discretion, specific pleading of limitation, and the absence of limitation for constitutional petitions alleging continuing violations.

Key legal issues

#
01

Interference with the trial court's exercise of discretion

Holding

The learned judge misapprehended the status of the proceedings (they were closed and awaiting a judgment date) and therefore erred in allowing the 2nd respondent to file the Notice of Motion on limitation

Reasoning

The Busia High Court had ordered the matter be determined on affidavit evidence with submissions filed; the Deputy Registrar fixed it for a judgment date. The judge below wrongly treated the mention as one for directions and permitted a belated limitation application, which was detrimental to the appellant's petition in which judgment was awaited.

p. 5
02

Pleading of limitation

Holding

Limitation must be specifically pleaded; the 2nd respondent's replying affidavit and submissions contained no such pleading, so the defence of limitation could not be raised without amendment of pleadings

Reasoning

Order 2 rule 4(1) of the Civil Procedure Rules requires specific pleading of any relevant statute of limitation. Halsbury's Laws as cited in Achola v Hongo confirms the rule. There was no mention of limitation in the replying affidavit or submissions, and absent amendment the defence was unavailable.

p. 5
03

Limitation of constitutional petitions

Holding

The petition was not time barred because no limitation period is prescribed for constitutional petitions and the alleged violations were continuing

Reasoning

The judge failed to appreciate that the suit concerned alleged violations of fundamental rights which were alleged to have continued to the date of the petition. Where violations of fundamental rights under the Constitution are continuing, the question of limitation does not arise and the suit cannot be time barred.

p. 5

Legal principles established

#
  • An appellate court will not interfere with the exercise of discretion by a trial court unless the court acted on wrong principles, misapprehended the law, acted on no evidence, or is plainly wrong
  • A matter such as a relevant statute of limitation must be specifically pleaded in any pleading subsequent to a plaint; an unpleaded limitation defence cannot sustain dismissal of a suit
  • Neither the retired Constitution nor the Constitution 2010 prescribes a limitation period for filing a constitutional petition, and where continuing violations are alleged limitation does not arise
  • A court should not allow a belated amendment or application pleading limitation after closure of pleadings and pending judgment, where it would cause prejudice incapable of compensation in costs

Court orders

#
  1. 1.Set aside the order of the Employment and Labour Court dismissing the appellant's petition
  2. 2.Substitute thereto an order reinstating the appellant's suit
  3. 3.Direct that the suit in the Employment and Labour Court be heard on its merits before another judge of that court, excluding Onyango, J
  4. 4.Order each party to bear their own costs in this Court

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 47(1) and (2), 50(1), 28, 25(a), 41(1), 35(2)
  • Public Authorities Limitation Act
  • Employment Act (Cap 226) (retired)section 90
  • Civil Procedure RulesOrder 2 rule 4(1); Order 8

Cases cited (4)

  • Mbogo & Another vs Shah
    [1968] E A 93
  • Achola & Another vs Hongo & Another
    LLR No. 4007 [CAK]
  • Eastern Bakery vs Castelino
    [1958] E.A. 461
  • Town Council of Awendo vs Nelso Oduor Onyango & 13 others
    [2013] eKLR
On appeal from
Employment and Labour Relations Court at Kisumu
Petition No. 10 of 2015
Jurisdiction invoked
First appellate jurisdiction over appeals from the Employment and Labour Relations Court (Court of Appeal, Kisumu, Civil Appeal No. 62 of 2016); no specific constitutional provision for appeal is stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Clement Ernest Opiyo Murenga v Principal Secretary, Treasury & Commissioner of Customs, Kenya Revenue Authority (Civil Appeal 62 of 2016) [2017] KECA 173 (KLR)", Case Analysis (2017). Civil Appeal No. 62 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/173/eng@2017-07-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.