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ELRCDismissedMeru Judicial Review / Constitutional Petition (judgment does not state the number)· [2015] KEELRC 226 (KLR)

Henry Nyakoe Obuba v National Police Service Commission & 3 others [2015] KEELRC 226 (KLR)

Employment and Labour Relations Court
20 November 2015
BOBYRAM ONGAYA
1,863 words in judgment
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The bottom line

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Kenya's Employment Court ruled a former police officer's petition was not time barred because his internal police appeal was never decided, keeping his case alive.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nyeri (Byram Ongaya, J) on a notice of preliminary objection dated 14.10.2015 against a constitutional petition filed on 08.09.2014 by a former member of the Kenya Police Service. The petitioner challenged removal proceedings initiated against him based on concluded Meru Chief Magistrate's criminal cases, alleging breaches of Articles 27, 28, 41, 47 and 50 of the Constitution and sections 45 and 35(1)(c) of the Employment Act, and sought reinstatement with accumulated salary and allowances of Kshs. 7,878,600.00. The respondents objected that the court lacked jurisdiction, that the suit was time barred under section 90 of the Employment Act, the Public Authorities Limitation Act and the Limitation of Actions Act, that the petition contravened section 89(5) of the National Police Service Act, and that an ordinary action rather than a petition should have been filed. The court framed two issues: limitation/jurisdiction, and the propriety of the petition procedure. On the first, it found the respondents had not disputed the pleaded facts that the petitioner's administrative appeal to the Commissioner of Police remained undecided, so the case was alive and not time barred; jurisdiction vested in the ELRC under Article 162(2)(a) as read with the ELRC Act. On the second, the court held the 2010 Constitution collapsed the barriers between judicial review, ordinary actions and petitions, and litigants could not be faulted for adopting any available procedural option. The preliminary objection was dismissed with costs and directions on further steps were invited.

Key legal issues

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01

Whether the petition was time barred and whether the court lacked jurisdiction

Holding

The petition was not time barred because the administrative appeal remained unresolved; the court has jurisdiction under Article 162(2)(a) and the ELRC Act.

Reasoning

The respondents relied on section 90 of the Employment Act, the Public Authorities Limitation Act and the Limitation of Actions Act, arguing the cause accrued on 27.05.2004 and the 2010 Constitution cannot apply retrospectively. The court found the respondents did not dispute the pleaded facts that the appeal to the Commissioner of Police was never decided, so the case was alive and the limitation provisions did not apply. Jurisdiction vested in the ELRC under Article 162(2)(a), which also bars the High Court under Article 165(5).

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02

Whether the petitioner should have filed an ordinary action rather than a constitutional petition

Holding

No; the Constitution has collapsed procedural barriers and litigants are not faulted for adopting any available procedural option.

Reasoning

The respondents argued a statement of claim was required. The court held the barrier between judicial review, ordinary actions and petitions was collapsed by the 2010 Constitution, which opened avenues to access to justice and all stipulated remedies in the same proceedings. Pending evolution of universal procedure, litigants choosing among the inherited procedural options cannot be faulted; imposing such objections would introduce procedural bars to access to justice.

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Legal principles established

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  • A preliminary objection must consist of a pure point of law arising from the pleadings.
  • An unresolved administrative appeal keeps the cause of action alive for limitation purposes.
  • The 2010 Constitution collapsed the barriers between judicial review, ordinary actions and petitions; litigants may adopt any of the available procedural options.

Court orders

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  1. 1.Notice of preliminary objection filed on 14.10.2015 dismissed with costs
  2. 2.Parties invited to take directions on further steps in the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3(1), 10, 19, 20, 21, 22, 23, 25, 27, 28, 35, 41, 47, 48, 49, 50, 159, 162, 165(5), 244, 245, 246, 247
  • Employment Act, 2007Sections 3(1) (2) is Public Authorities; here sections 45, 35(1)(c), 87 and 90
  • Public Authorities Limitation ActSections 3(1) and (2)
  • Limitation of Actions ActSections 4(1) and (2)
  • National Police Service ActSection 89(5)
  • Employment and Labour Relations Court Act, 2012Section 12

Cases cited (5)

  • Mukisa Buiscuits Manufacturing Company Limited
    (1969) EA 696
  • Margaret Lorna Kariuki –Versus- Embu County Government
    [2015]eKLR
  • Peter Muchai Muhura –Versus- Teachers Service Commission
    [2015]eKLR
  • Professor Elijah Biama –Versus- University of Eldoret and 2 Others
    [2014]eKLR
  • Harrikson –Versus- Attornney General of Trinidad and Tobacco
    (1980) AC 265
Jurisdiction invoked
Articles 162(2)(a) and 165(5) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, 2012

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, "Henry Nyakoe Obuba v National Police Service Commission & 3 others [2015] KEELRC 226 (KLR)", Case Analysis (2015). Meru Judicial Review / Constitutional Petition (judgment does not state the number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/226/eng@2015-11-20

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