Clement Ernest Murengo v Principal Secretary Treasury & another [2016] KEELRC 1451 (KLR)
The bottom line
#A Kenyan court dismissed a decades-old dismissal claim against KRA because the claim was filed too late and KRA didn't even exist when it happened.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Respondent's motion was properly filed despite pleadings having closed
The motion was properly before the court; there is no restriction in law on the time for filing applications, and the Petitioner had not objected to the Preliminary Objection being abandoned in favour of the application
The court found the Petitioner's argument that the matter was pending judgment incorrect because the case had come up before this court for directions. The 2nd Respondent had sought and obtained leave to file a Preliminary Objection, then abandoned it in favour of the motion, which the Petitioner did not object to. No legal restriction on filing timing existed.
Whether the 2nd Respondent (KRA) is properly joined
The 2nd Respondent was not properly joined as it was created in 1995, long after the Petitioner's 1985 dismissal
The Petitioner was dismissed by letter dated 29th May 1985 by the Permanent Secretary/Treasury. KRA was created by the Kenya Revenue Authority Act on 1st July 1995. The Petitioner was never employed by or seconded to KRA under Section 22(4), and the Public Service Commission had already exhausted its jurisdiction on his appeals.
Whether the petition is time barred
The claim is time barred; limitation runs from 29th May 1985, and no continuing violation arises from termination of employment
Section 3 of the Public Authorities Limitation Act caps tort claims against Government at twelve months and contract claims at three years; Section 90 of the Employment Act requires employment claims within three years. Termination is a specific event, not a continuing injury, so all alleged violations arose from the 1985 termination and are long out of time.
Whether the 2010 Constitution applies retrospectively to the alleged violations
No; rights under the 2010 Constitution do not apply to wrongs committed before its promulgation
The Petitioner pleaded violations of Articles 47, 50(1), 28, 25(a), 41(1) and 35(2) of the 2010 Constitution, yet his employment was terminated in 1985. Relying on John Murithi Marire and Joseph Thuo Mwaura, the court held the Constitution does not apply retrospectively, and elevating labour rights to the Bill of Rights does not jettison applicable substantive and procedural law.
Legal principles established
#- Termination of employment is not a continuing injury; limitation is reckoned from the date of the letter of termination
- Limitation statutes apply to petitions for redress of infringement of fundamental rights and freedoms
- The Constitution of Kenya 2010 does not apply retrospectively to wrongs committed before its promulgation
Court orders
#- 1.The application filed by the 2nd Respondent succeeds
- 2.The claim against the 2nd Respondent is dismissed with no orders for costs
- Jurisdiction invoked
- Jurisdiction as the Employment and Labour Relations Court following transfer from the High Court (Busia) as an Employment and Labour Relations matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clement Ernest Murengo v Principal Secretary Treasury & another [2016] KEELRC 1451 (KLR)", Case Analysis (2016). Petition (originally filed in Busia High Court on 27th March, 2014; transferred to Industrial Court by orders of 10th March, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1451/eng@2016-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.