Mitei v National Social Security Fund Board of Trustees
The bottom line
#Kenya's Court of Appeal confirmed that even constitutional petitions can fail if filed years late without a good explanation.
What this practically means
#Executive summary
#Key legal issues
#When the cause of action accrues in an employment dismissal claim
The cause of action arose on the date of dismissal, not on the later acquittal on the criminal appeal.
The court held that the appellant's dismissal on 16th July 2010 was the operative event giving rise to the claim; the High Court criminal appeal concluded on 28th February 2017 did not reset the clock. The petition filed in 2017 was therefore 7 years late, an inordinate delay in employment matters, and no explanation was offered in the petition or supporting affidavit.
Limitation and delay in constitutional petitions
Even absent a limitation period for fundamental-rights petitions, courts may dismiss claims brought after inordinate and unexplained delay.
Relying on Wellington Nzioka Kioko and Daniel Kibet Mutai, the court affirmed that a respondent must have a reasonable expectation that claims are prosecuted within a reasonable time, and that delay without justifiable reason is an abuse of process contrary to Article 159. The appellant filed no response to the preliminary objection explaining the 7-year delay.
Disguised constitutional petitions
Where the reliefs sought are statutory employment remedies, the petition is a normal claim disguised as a constitutional petition and should be pursued under the Employment Act regime.
The reliefs sought (reinstatement or Kshs 3.7 million comprising service pay, notice, salary increments, pension and 12 months' damages) are available only under Section 49 of the Employment Act, subject to the Section 90 limitation. The same reliefs had been sought in Cause No. 1315 of 2010, which the appellant withdrew in favour of the petition.
Legal principles established
#- Although there is no limitation period for constitutional petitions alleging breach of fundamental rights, a court is entitled to consider whether the claim was lodged within a reasonable time and may dismiss an inordinate, unexplained delay.
- A party ought not to trivialize the constitutional jurisdiction where other sufficient and adequate avenues exist to resolve the dispute.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Nairobi Petition No. 33 of 2017
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the Employment and Labour Relations Court (Article 162(2) and Article 164 of the Constitution invoked in submissions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mitei v National Social Security Fund Board of Trustees", Case Analysis (2022). Civil Appeal 310 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/974/eng@2022-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.