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ELRCOtherEmployment and Labour Relations Court Claim filed 22nd April 2014 (number not stated)· [2015] KEELRC 1586 (KLR)

Adam Isilu Mutinda v Attorney General (Cause 668 of 2014) [2015] KEELRC 1586 (KLR)

Employment and Labour Relations Court
23 April 2015
MNMathews N. Nduma
828 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 ruled that a 1982 human rights claim can proceed because no time limit applies to constitutional rights violations.

What this practically means

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Executive summary

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This is a ruling on a Preliminary Objection in a claim filed on 22nd April 2014 arising from events of 1st August 1982, the day of the attempted coup d'etat in Kenya. The Claimant, a former serviceman convicted and sentenced by court martial, sought declarations that his rights under the Armed Forces Act, the Kenya Defence Forces Act No. 60 of 1968, and Sections 70, 71, 72, 74(1) and 79 of the erstwhile Constitution of Kenya 1969 were violated between August 1982 and 2nd September 1985, together with compensation and general, exemplary and aggravated damages, alleging false imprisonment, wrongful dismissal, torture and non-payment of terminal dues. The Respondent, through state counsel, objected that the claim was statute barred having arisen over 32 years earlier, that it offended Section 90 of the Employment Act, 2007, and that it was an abuse of process warranting striking out with costs. The Claimant argued that limitation statutes are inapplicable to fundamental rights claims and cannot operate retrospectively. Adopting the reasoning of Hayanga J in Dominic Arony Amolo v Attorney General, the court held that Section 3 of the erstwhile Constitution excludes the operation of the Limitation of Actions Act in fundamental rights claims, and that passage of time cannot shield human rights violations from adjudication. The Preliminary Objection was not upheld and the suit was allowed to take its normal course.

Key legal issues

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Whether limitation statutes bar constitutional fundamental rights claims arising from the 1982 coup events

Holding

The Preliminary Objection fails; limitation provisions are inapplicable to claims for violation of fundamental rights and freedoms

Reasoning

The court adopted the reasoning of Hayanga J in Dominic Arony Amolo v Attorney General, holding that Section 3 of the erstwhile Constitution excludes the operation of Cap. 22 with regard to fundamental rights claims, and that fundamental rights provisions cannot be interpreted as subject to limitation causes of action. The court further reasoned that human rights violations in the young Republic cannot be shielded from adjudication merely by the passage of time, and that Section 90 of the Employment Act cannot apply retrospectively to a 1982 cause of action.

p. 2

Legal principles established

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  • The Limitation of Actions Act (Cap. 22) does not apply to claims for violation of fundamental rights and freedoms
  • Passage of time cannot shield violations of human rights and fundamental freedoms from judicial adjudication

Court orders

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  1. 1.The Preliminary Objection is not upheld
  2. 2.The suit will take its normal course

Authorities

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Legislation

  • Constitution of Kenya 1969 (erstwhile)Sections 70, 71(1), 72(3), 73, 74(1), 75(5), 77(2), 79(1), 84(2)
  • Armed Forces Actnot specified
  • Kenya Defence Forces Act No. 60 of 1968not specified
  • Employment Act, 2007Section 90
  • Limitation of Actions Act, Cap. 22Section 4(1)

Cases cited (1)

  • Dominic Arony Amolo v The Hon. Attorney General
    HCC at Nairobi Misc. Application No. 494 of 2003
Jurisdiction invoked
Sections 70, 71(1), 72(3), 75(5), 74(1), 77(2), 79(1) and 84(2) of the erstwhile Constitution of Kenya 1969; Armed Forces Act; Kenya Defence Forces Act No. 60 of 1968

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, "Adam Isilu Mutinda v Attorney General (Cause 668 of 2014) [2015] KEELRC 1586 (KLR)", Case Analysis (2015). Employment and Labour Relations Court Claim filed 22nd April 2014 (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1586/eng@2015-04-24

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