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ELRCOtherNot stated in judgment· [2015] KEELRC 1437 (KLR)

Julius Njagi Kathuri v Attorney General [2015] KEELRC 1437 (KLR)

Employment and Labour Relations Court
25 February 2015
LNLINNET NDOLO
525 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a preliminary objection in an employment and fundamental rights matter before the Employment and Labour Relations Court at Nairobi, delivered by Linnet Ndolo J on 25th February 2015. The Respondent sought to strike out the Claimant's claim as time barred under the Employment Act, the Limitation of Actions Act and the Public Authorities Limitation Act, arguing that the Claimant, a former Kenya Air Force serviceman discharged in 1982 in circumstances connected to the aborted coup of 1st August 1982, had filed his claim only on 18th February 2014. Counsel for the Respondent relied on Samson Ngonga v Public Service Commission & 5 Others [2013] eKLR, where Nduma J held a claim time barred under section 3(2) of the Public Authorities Limitation Act. The court held that the claim was not a pure contract of service claim but a constitutional petition alleging violation of fundamental rights and freedoms under sections 70, 72(3) & (5) and 74(3) of the Constitution, and that such matters are not subject to limitation. The Ngonga case, being based on a pure contract of employment, was distinguished. The preliminary objection was overruled. However, noting that the Claimant had filed a Memorandum of Claim rather than a constitutional petition, the court directed the Claimant to amend his pleadings and the Respondent to file its Reply within 21 days of service. Costs of the application were reserved to the cause.

Key legal issues

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01

Whether a claim framed as a constitutional petition for violation of fundamental rights is subject to statutory limitation periods

Holding

The claim is not subject to limitation because it is in the nature of a constitutional petition, not a pure contract of service claim; the preliminary objection was overruled.

Reasoning

The court held that although the Claimant was discharged from the Kenya Air Force in 1982 and the suit was filed in 2014, the claim was not merely one arising out of a pure contract of service, which would attract limitation under the Employment Act, Limitation of Actions Act and Public Authorities Limitation Act. Instead it was a constitutional petition alleging violation of fundamental rights and freedoms, and such matters are not subject to limitation. The authority relied on by the Respondent, the Ngonga case, was distinguishable as it was founded on a pure contract of employment.

p. 2

Legal principles established

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  • Matters arising out of alleged violation of fundamental rights and freedoms are not subject to limitation of actions.

Court orders

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  1. 1.The Respondent's preliminary objection is overruled
  2. 2.The Claimant is directed to amend his pleadings from a Memorandum of Claim to a constitutional petition
  3. 3.The Respondent is directed to file its Reply within 21 days of service of the constitutional petition
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Employment ActNot specified
  • Limitation of Actions ActNot specified
  • Public Authorities Limitation ActSection 3(2)
  • Armed Forces ActNot specified
  • Defence Forces ActNot specified
  • Constitution of KenyaSections 70, 72(3) & (5), 74(3), 84(2)
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice & Procedure Rules, 2013Not specified

Cases cited (1)

  • Samson Ngonga Vs Public Service Commission & 5 Others
    [2013] eKLR
Jurisdiction invoked
Claim brought under the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice & Procedure Rules, 2013 alleging constitutional rights violations

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, "Julius Njagi Kathuri v Attorney General [2015] KEELRC 1437 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1437/eng@2015-02-25

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