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ELRCStruck OutNot stated in the judgment· [2014] KEELRC 1268 (KLR)

John Miriti Mbarire v Attorney General [2014] KEELRC 1268 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
18 September 2014
LNLINNET NDOLO
718 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a 1995 dismissal claim filed as a constitutional petition, holding that limitation periods still apply to contractual employment claims.

What this practically means

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Executive summary

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This ruling by Linnet Ndolo J of the Industrial Court at Nairobi determined a preliminary objection dated 25th April 2014 raised by the Respondent against the Petitioner's petition alleging violation of rights in connection with the termination of the Petitioner's commission effective 5th August 1995. The Respondent argued that the petition was statutorily time barred under the Public Authorities Limitations Act (Cap 39) and that the Petitioner could not claim violation of rights under the Constitution, 2010 for events predating its promulgation. The Petitioner countered that a petition for enforcement of fundamental rights is not subject to statutory limitation, that the claim was not founded on tort or contract, and that the objection was a mere technicality offendable under Article 159(2)(d). The court framed two issues: whether the claim was subject to contractual limitation and barred by time, and whether the 2010 Constitution applied to the Petitioner. Relying on Kemrajh Harrikissoon v Attorney General of Trinidad and Tobago, the court held that a constitutional petition cannot be used as a general substitute for ordinary procedures and that the elevation of labour rights to the Bill of Rights does not displace applicable substantive and procedural employment law. It found the claim founded on contract and out of time even under the six-year Limitation of Actions Act period. Following Joseph Ihuo Mwaura, it held the 2010 Constitution applies prospectively only. The petition was struck out with no order for costs.

Key legal issues

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01

Whether a constitutional petition claiming violation of employment rights is subject to statutory limitation

Holding

The claim, though brought by petition, was founded on contract (termination of the Petitioner's commission) and was subject to limitation; it was way out of time even under the six-year period in the Limitation of Actions Act

Reasoning

The court accepted that actions for breach of fundamental rights are generally not bound by limitation, but held that not every petition enjoys that insulation. Elevating labour rights to the Bill of Rights does not jettison applicable substantive and procedural employment law. The Petitioner's cause of action arose on termination effective 5th August 1995, so the claim was time barred.

p. 2
02

Whether the Constitution, 2010 applies to violations alleged to have occurred before its promulgation

Holding

The 2010 Constitution does not apply retrospectively

Reasoning

The court agreed with Majanja J's decision in Joseph Ihuo Mwaura & 82 Others v the Attorney General that the provisions of the Constitution, 2010 do not apply retrospectively. The alleged violations occurred prior to promulgation of the current Constitution, so the Petitioner could not claim violation of rights under it, though the court noted the petition also purported to rely on the repealed Constitution.

p. 2

Legal principles established

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  • Not every claim brought by way of petition for enforcement of fundamental rights is insulated from statutory limitation periods; where a claim is founded on contract, limitation applies
  • The constitutional petition should not be misused as a general substitute for normal procedures for invoking judicial control of administrative action
  • The Constitution, 2010 does not apply retrospectively to events that occurred before its promulgation

Court orders

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  1. 1.The Petitioner's claim, being statute barred, was struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Public Authorities Limitations Act (Cap 39, Laws of Kenya)Section 3(1) and (2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Limitation of Actions ActSix-year limitation period

Cases cited (2)

  • Kemrajh Harrikissoon Vs the Attorney General of Trinidad and Tobago
    [1979] UKPC 3
  • Joseph Ihuo Mwaura & 82 Others Vs the Attorney General
    Petition No 498 of 2009
Jurisdiction invoked
Original jurisdiction over employment and labour relations disputes under Article 162(2) of the Constitution (implied; not expressly cited in the ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Miriti Mbarire v Attorney General [2014] KEELRC 1268 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1268/eng@2014-09-18

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