Alfred Asidaga Mulima & 2 others v Attorney General & 8 others
The bottom line
#Kenya's Court of Appeal blocked former East African Airways workers from reviving 1977 benefit claims, ruling the matter was already decided and decades too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the EACMAA exclusively governed the provident fund claims
The EACMAA addressed provident funds, but the trial court was not exclusively bound by it and could consider other material, including the Taskforce Report.
The court analysed Article 10 of the Mediation Agreement and the EACMAA First Schedule, which deals with pension and provident fund assets of the defunct Community corporations. It found the Act addressed provident funds but held the trial court was also bound to consider other material relating to the claims against the 2nd to 6th respondents, including the 2011 Taskforce Report, which found payments had been made and that no respondent held any provident funds.
Whether the petition was res judicata
The petition was res judicata, having been litigated before Lenaola J, the East African Court of Justice (First Instance and Appellate Divisions) and the Industrial Court.
The court applied section 7 of the Civil Procedure Act and Explanation 6 thereto, and its earlier decision in Pop-In (Kenya) Ltd v Habib Bank. The same claims by former EAC employees, including the appellants' association members, had been heard and finally determined by courts of competent jurisdiction; re-litigating identical issues on the same facts would also be an abuse of process.
Whether the claim was time barred and whether delay defeated a fair trial
The claim, accruing in 1977 and filed in 2014, was statute barred under section 4(1)(d) of the Limitation of Actions Act, and the delay caused the 2nd to 6th respondents serious prejudice.
The cause of action arose in 1977; the petition was filed nearly 37 years later. Even in constitutional claims, delay must be considered for reasonableness and prejudice, and constitutional avoidance applies. Records had been destroyed or lost under the Records Disposal Act, so the respondents could not get a fair trial.
Whether the Constitution of Kenya, 2010 applies retrospectively
The 2010 Constitution does not apply retrospectively; new rights created under it are not enforceable for pre-2010 causes of action.
Relying on Samuel Kamau Macharia v Kenya Commercial Bank, the court held that where constitutional provisions are forward-looking, courts must not import retrospectivity, especially where it would divest accrued rights. Most rights invoked were conferred only under the 2010 Constitution and were not recognised under the repealed Constitution when the cause of action arose in 1977.
Legal principles established
#- A suit is res judicata where the matter was directly and substantially in issue in a former suit between the same parties or parties litigating under the same title, heard and finally decided by a competent court.
- Even in constitutional litigation, inordinate and unexplained delay that prejudices the respondent bars relief; courts should consider whether the delay was unreasonable and prejudicial.
- The constitutional avoidance principle requires a court not to determine a constitutional issue where the matter may properly be decided on another basis.
- New rights created under the Constitution of Kenya, 2010 cannot be enforced in respect of causes of action that arose before its commencement unless recognised under the previous Constitution.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Each party to bear its own costs of the appeal
- 3.The High Court's order directing the Attorney General to publish, within 90 days, the names and addresses of former employees who received dividends, those who had not collected their monies, and the total amount lying in the Official Receiver's account at National Bank, left undisturbed
- On appeal from
- High Court of Kenya at Nairobi
- High Court Petition No. 113 of 2013
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the High Court (Constitution of Kenya, 2010, Article 164)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shirika Housing Cooperative Society v Piyiank & another (Environment and Land Case E129 of 2024) [2025] KEELC 5720 (KLR)[2025] KEELC 5720 (KLR)31 Jul 2025
- Surya Holdings Limited & 2 others v CFC Stanbic Limited & another[2020] KESC 2 (KLR)4 Dec 2020
Cite this brief
#Cite this brief
Caselaw, "Alfred Asidaga Mulima & 2 others v Attorney General & 8 others", Case Analysis (2017). Civil Appeal 179 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/766/eng@2017-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.