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ELRCDismissedNot stated in the judgment· [2016] KEELRC 1759 (KLR)

Hassan Aden Osman v Cabinet Secretary,Ministry of State for Defence and Chair Person of The Defence Counsel & another [2016] KEELRC 1759 (KLR)

Employment and Labour Relations Court of Kenya
19 January 2016
HWHellen Wasilwa
1,099 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a soldier's dismissal claim could not be thrown out simply because it was filed years late.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection dated 7.9.2015 seeking dismissal of the Claimant's claim under Section 3(2) of the Public Authorities Limitation Act Cap 39, on the ground that the Claimant was dismissed in 2006 but filed the claim on 17.1.2014, nearly ten years later, without leave or justifiable reasons. The Respondent relied on Thuranira Karauri vs Agnes Ncheche, where the Court of Appeal held that limitation goes to jurisdiction and a time-barred suit is incompetent, and on Divecon vs Samani, to argue that the court has no discretion to extend time for contract claims. The Claimant countered that his service in the Armed Forces was not based on a contract of employment, so Cap 39 does not apply, citing Benjamin Muema vs Attorney General & 2 others, where Ojwang J held that claims involving the interplay of civil and military law and constitutional principles cannot be determined by mere interpretations of limitation periods but on the merits. The Claimant's claim arises from a 2006 court martial, conviction, 42 days' imprisonment and dismissal, alleged to have been conducted in breach of the Armed Forces Act and Rules of Procedure, and therefore null, void and unconstitutional. The court agreed that the claim is not 'civil proceedings' as defined in Cap 39, adopted Ojwang J's reasoning, held limitation could not be determined at that stage, dismissed the preliminary objection and directed the case to proceed on its merits.

Key legal issues

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01

Whether limitation under Section 3(2) of the Public Authorities Limitation Act applies to a claim for unlawful dismissal from the Armed Forces

Holding

It does not apply at that stage because the claim is neither founded on contract nor on tort, and involves the interplay of civil and military law and constitutional principles

Reasoning

The court reasoned that the claim concerns unlawful trial, conviction, imprisonment and dismissal under military law, not a contract of employment. Adopting Ojwang J's reasoning in Benjamin Muema, it held the claim cannot be classified as tort or contract and Cap 39, which defines proceedings as civil proceedings, is inapplicable. Limitation was therefore not determined at the preliminary stage.

p. 3

Legal principles established

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  • Proceedings relating to a claim arising from service in the Armed Forces cannot be classified on common law tort/contract lines for limitation purposes; such a case must be determined on the merits and not on mere technicalities

Court orders

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  1. 1.The Preliminary Objection dated 7.9.2015 is dismissed
  2. 2.The case may now proceed on its own merit

Authorities

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Legislation

  • Public Authorities Limitation Act Cap 39 Laws of KenyaSection 3(2)
  • Public Authorities Limitation Act Cap 39 Laws of KenyaSection 2
  • Armed Forces ActSection 68
  • Armed Forces Rules or ProcedureRules 7, 8, 9, 10 & 11

Cases cited (3)

  • Thuranira Karauri vs Agnes Ncheche
    eKLR
  • Divecon vs Samani
    (1995 – 1998) 1 EA 48
  • Benjamin Muema vs Attorney General & 2 others
    (2006) eKLR
Jurisdiction invoked
Not expressly stated; the court determined a preliminary objection in an employment claim founded on military law and the Armed Forces 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, "Hassan Aden Osman v Cabinet Secretary,Ministry of State for Defence and Chair Person of The Defence Counsel & another [2016] KEELRC 1759 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1759/eng@2016-01-19

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