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ELRCPartially AllowedIndustrial Court Cause No. 979 of 2011 (with Petition No. 40 of 2012 referred from Nairobi High Court Petition No. 276 of 2012)· [2014] KEELRC 1269 (KLR)

Chris Ngaira Isabwa v Postal Corporation Of Kenya [2014] KEELRC 1269 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 July 2014
3,774 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a dismissed Postal Corporation worker could sue under the Employment Act's three-year deadline, not the corporation's shorter 12-month limit.

What this practically means

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Executive summary

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The Claimant, Chris Ngaira Isabwa, sued Postal Corporation of Kenya for wrongful dismissal from employment, seeking a declaration, terminal benefits, compensation, costs and interest. The Respondent raised a preliminary objection that under Section 24 of the Postal Corporation of Kenya Act, claims against it must be preceded by one month's written notice to the Post-Master General and commenced within 12 months; since the Claimant was dismissed on 22nd July 2009 and filed suit on 20th June 2011, the claim was time barred. The Claimant responded with a constitutional petition (originally High Court Petition No. 276 of 2012, referred to this court and treated as a response to the preliminary objection) challenging the constitutionality of Section 24 as violating Articles 3, 20, 27, 48 and 159(2) of the Constitution, and relying on the Kenya Bus Services decision and other authorities. The Respondent defended the section as a legitimate limitation measure aligned with other state corporation statutes, citing Dhanesvar Mehta, Rawal v Rawal and the Anarita Karimi Njeru principle. The court declined to declare Section 24 unconstitutional, holding that it applies to all equally and is not discriminatory. However, applying Sections 26, 92(3) and 93 of the Employment Act and the Court of Appeal's decision in Kenya Revenue Authority v Menginya Salim, the court held that employment disputes fall under the Employment Act, not the corporation's establishing statute, and therefore declared the claim not statute barred, having been filed within the 3-year period under Section 90 of the Employment Act. Judgment was delivered at Nairobi on 17th July 2014 by Lady Justice Maureen Onyango, with no appearances by either party. No costs order was recorded.

Key legal issues

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01

Whether Section 24 of the Postal Corporation Act violates Articles 27, 48 and 159(2) of the Constitution

Holding

The section is not unconstitutional; it is not discriminatory as it applies to all equally, and limitation statutes serve the public interest of barring stale claims rather than denying access to justice.

Reasoning

The court noted similar limitation provisions exist in the Public Authorities Limitations Act, Kenya Railways Corporation Act, Kenya Roads Board Act, Kenya Broadcasting Corporation Act and Kenya Airports Authority Act. Relying on Kenya Bus Services Ltd v Minister for Transport, it held that provisions applying to all equally do not violate Article 27(4), and the petitioner did not specify the ground of discrimination. Limitation law strikes a balance between enforcing claims and protecting defendants from stale claims.

p. 6
02

Whether Section 24 of the Postal Corporation Act applies to the Claimant's employment claim so as to time-bar it

Holding

Section 24 does not apply to employment claims; the Employment Act governs, under which the 3-year limitation period in Section 90 had not lapsed, so the claim is not statute barred.

Reasoning

Sections 26, 92(3) and 93 of the Employment Act make the Act's minimum terms applicable to all contracts of service and provide that such contracts are construed and enforced subject to the Act. Relying on Kenya Revenue Authority v Menginya Salim, disciplinary action against a public body employee is contractual, not statutory. Holding otherwise would subject public corporation employees to less favourable terms contrary to Article 27 and create parallel legal regimes for employment disputes.

Legal principles established

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  • All employment contracts, including those of public corporations established by statute, are governed and enforceable under the Employment Act; statutory limitation provisions in the establishing statute of a public corporation do not apply to employment disputes.
  • A limitation provision in a public corporation's statute that applies to all claimants equally is not discriminatory under Article 27(4) of the Constitution.
  • Disciplinary action against an employee of a public body is exercised under the contract of employment, not under a statutory power.

Court orders

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  1. 1.Declaration that the claim filed by the Claimant in Industrial Court Cause No. 979 of 2011 is not statute barred as it was filed before the lapse of the limitation period of 3 years provided for under Section 90 of the Employment Act

Authorities

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Legislation

  • Postal Corporation of Kenya ActSection 24
  • Constitution of Kenya, 2010Articles 3, 20, 21(1), 22(1), 23, 24, 27(1),(2),(4),(5), 48, 50, 159(2)(d)
  • Employment ActSections 4 (as argued), 26, 43, 44(4)(c), 45, 90, 92(3), 93
  • Limitation of Actions ActSections 4, 6
  • Government Proceedings ActSections 3(1),(2), 13A
  • Public Authorities Limitation ActSections 3(1),(2), 6
  • Civil Procedure ActSection 3A
  • Judicature ActSection 3
  • Kenya Railways Corporation ActSection 87
  • Kenya Roads Board ActSection 67
  • Kenya Broadcasting Corporation ActSection 46
  • Kenya Airports Authority ActSection 34
  • Arbitration ActSection 6(1)
  • Interim South African ConstitutionSection 22

Cases cited (18)

  • Kenya Bus Services Ltd & Another v Minister for Transport & 2 Others
    [2012] eKLR
  • Leach Mokeli Mohlomi v Minister of Defence
    [1996] ZACC 20, 1997 (1) SA 124
  • Mohamed Balala & 11 Others v Attorney General & 7 Others
    [2012] eKLR
  • Apex Finance International Limited v The Kenya Anti-Corruption Commission
    Judicial Review No. 64 of 2011
  • Dhanesvar Mehta v Manilal M. Shah
    (1965) E.A 321
  • Rawal v Rawal
    [1990] KLR 275
  • Rose Moraa & Another v Attorney General
    [2006] eKLR
  • Anarita Karimi Njeru v Republic
    (1979) No. 1 KLR 154
  • Meme v Republic
  • James Nyasora Nyarangi & 3 Others v Attorney General
    [2008] eKLR
  • John Kabui Mwai v Kenya National Examinations Council & 2 Others
    [2011] eKLR
  • R v Turppin
    (1989) I S.G.R
  • Francis Mugo Ndegwa v Amboseli Court Limited
    [2012] eKLR
  • Iga v Makerere University
    [1972] EA 65
  • J. Wambugu & 8 Others v Railways Corporation of Kenya
    [2005] eKLR
  • Willis Evans Otieno v Law Society of Kenya & 2 Others
    [2011] eKLR
  • Sietco v Kigwe Complex Limited
    [2013] eKLR
  • Kenya Revenue Authority v Menginya Salim
Jurisdiction invoked
Referral of Petition No. 276 of 2012 from the High Court; constitutional petition under Articles 22(1), 23, 27, 48, 159(2) of the Constitution read with Section 3A of the Civil Procedure Act

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, "Chris Ngaira Isabwa v Postal Corporation Of Kenya [2014] KEELRC 1269 (KLR)", Case Analysis (2014). Industrial Court Cause No. 979 of 2011 (with Petition No. 40 of 2012 referred from Nairobi High Court Petition No. 276 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1269/eng@2014-07-17

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