SAMUEL G. MOMANYI V SDV TRANSAMI KENYA LIMITED [2013] KEELRC 495 (KLR)
The bottom line
#The Industrial Court refused to revive an unfair dismissal claim struck out before section 45(3) was declared unconstitutional — that invalidity only applies to claims filed after 18 May 2012.
What this practically means
#Executive summary
#Key legal issues
#Effective date of a declaration of invalidity where the Constitution is silent on retrospectivity
The declaration of invalidity of section 45(3) applies only to claims filed after 18th May 2012; it does not operate retrospectively
The Court noted Kenya's Constitution contains no specific rule on retroactivity or suspension of declarations of invalidity, unlike South Africa's section 172(1). Drawing on the Supreme Court's decision in Samuel Kamau Macharia, it held that judicial caution, legal certainty and protection of vested rights preclude retrospective invalidation. Reopening past dismissals would trigger a turbulence in private legal relations. Parties should seek clarification on effective dates from the court that made the declaration.
Whether the Industrial Court should review its Ruling of 10th December 2010 severing the unfair termination claim
The review application was rejected because the Ruling was validly made under section 45(3) when it had the force of law
The Respondent had a vested right to raise the section 45(3) defence before the declaration of invalidity, and the Court's Ruling predates the High Court judgment. Allowing review would invite all similarly unsuccessful claimants to troop back to court. The Court acted in accordance with the law as it stood on 10th December 2010, so no ground for review under Rule 32 was made out.
Objective justifiability of qualifying periods for unfair termination claims
Qualifying periods are legitimate limitations justifiable in an open and democratic society, best left to social partners
Comparing English and South African law, the Court observed that qualifying periods exist in different labour markets, serve objectives such as strengthening the employment relationship, easing the burden on the industrial justice system and improving business confidence, and are justifiable limitations. It noted with concern that Kenya's Employment Act lumps discrimination and automatically unfair dismissal claims together under the qualifying period.
Legal principles established
#- A declaration of constitutional invalidity of a statutory provision operates prospectively only, and does not disturb rights vested, or judicial decisions made, before the date of the declaration
- Until expressly declared invalid by a court, a statute has the force of law notwithstanding constitutional repugnance
Court orders
#- 1.The application for review is rejected
- 2.Parties to agree on a date for the hearing of the main claim
- 3.Costs in the cause
- Jurisdiction invoked
- Section 16 of the Industrial Court Act No. 20 of 2011 and Rule 32 of the Industrial Court (Procedure) Rules, 2010 (review of the Court's own decisions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAMUEL G. MOMANYI V SDV TRANSAMI KENYA LIMITED [2013] KEELRC 495 (KLR)", Case Analysis (2013). Industrial Court Cause Number 358 of 2010 (application for review dated 19th July 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/495/eng@2013-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.