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ELRCStruck OutNot specified in judgment· [2016] KEELRC 1870 (KLR)

Ondis v Muhoroni Constituency Development Fund (Cause 202 of 2014) [2016] KEELRC 1870 (KLR)

Employment and Labour Relations Court
16 June 2016
MOMaureen Onyango
2,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed employees can sue over CDF disputes, but struck out this claim because it was filed years too late.

What this practically means

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Executive summary

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The claimant, formerly a project co-ordinator with the Constituency Development Fund, was interdicted on 21 May 2007 and later prosecuted for forgery under section 349 of the Penal Code, being acquitted on 15 March 2012. He filed a claim on 14 August 2014 seeking a declaration that his dismissal was unlawful, outstanding dues, and general damages for unlawful suspension or interdiction, later amended. The respondent filed a notice of preliminary objection on two grounds: that the claim was statute barred under section 90 of the Employment Act, and that the court lacked jurisdiction by dint of section 52 (now section 56) of the Constituency Development Fund Act, which prescribes an internal dispute resolution mechanism. Relying on Owners of Motor Vessel 'Lillian S' and related authorities, the respondent urged striking out of the claim. The claimant countered that Article 162(2)(a) and section 12 of the Employment Act vested exclusive jurisdiction in the court, and that the six-year period under the Limitation of Actions Act applied since his dismissal predated the Employment Act 2007. The court held that the CDF Board has no power over employment disputes, which fall exclusively within its own jurisdiction, and dismissed the first ground. On limitation, it found the claim accrued on interdiction or, at latest, acquittal, and was filed out of time; under Divecon v Samani no extension was possible. The second ground succeeded and the suit was struck out with no orders for costs, dated 16 June 2016.

Key legal issues

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01

Whether the Constituency Development Fund Act's internal dispute resolution mechanism ousts the court's jurisdiction over employment disputes

Holding

No; section 56 applies to disputes arising from implementation of the Fund, not employment disputes; the Board has no power over employment matters and the court has exclusive jurisdiction under Article 162(2)(a).

Reasoning

The court examined section 56(3) of the CDF Act and the Board's functions under section 16, concluding the dispute-resolution mechanism targets disputes arising from implementation of the Fund. Employment matters are vested exclusively in the Employment and Labour Relations Court by Article 162(2)(a), section 12 of the Employment and Labour Relations Court Act and the Employment Act. The first ground of the objection was dismissed.

p. 4
02

Whether the claim was statute barred

Holding

Yes. The claim accrued on interdiction (21 May 2007) or at latest on acquittal (15 March 2012); filed on 14 August 2014, it was out of time under the six-year limitation period.

Reasoning

The interdiction predated the Employment Act 2007, so the Limitation of Actions Act applied with its six-year period for contract actions. Reckoned from the end of the contractual parliamentary term in December 2007, time lapsed by December 2013; even reckoned from acquittal, the claimant could not extend time, and he filed more than a year after the period lapsed. The second ground succeeded and the suit was struck out.

p. 5

Legal principles established

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  • Section 56 of the Constituency Development Fund Act dispute-resolution mechanism does not oust the court's jurisdiction over employment disputes relating to employees of the Fund
  • A claim accrued before the Employment Act 2007 came into force is governed by the Limitation of Actions Act with a six-year period for contract claims
  • Time for filing suit founded on contract cannot be extended under the Limitation of Actions Act

Court orders

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  1. 1.Dismissal of the first ground of the preliminary objection on jurisdiction
  2. 2.The claimant's suit struck out with no orders for costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 12
  • Constituency Development Fund Actsection 52 / section 56 (formerly section 53)
  • Constituency Development Fund Actsection 16
  • Penal Codesection 349
  • Limitation of Actions Actsection 4(1), Part III
  • Government Proceedings Actsection 13A
  • Constitution of Kenya 2010Articles 48, 162(2)(a), 165(2)

Cases cited (10)

  • Owners of Motor Vessel 'Lillian S' v Caltex Oil (K) Limited
    [1989] KLR 1
  • James Kariuki v Eng. John Kiragu & 2 others
    [2013] eKLR
  • Franco v King
    [2009] KLR 518
  • Speaker of National Assembly v Karume
    [2008] KLR (EP) 425
  • Kones v Republic and Another Ex-parte Kimani wa Nyoike
    Civil Appeal No. 94 of 2005
  • Wilson Wachira Ngunjiri & Another v Ol' Joro' Orok Constituency Development Fund Committee and 3 others
    [2014] eKLR
  • George Morara Manyara v Hon. Maina Kamanda & 3 others
    [2014] eKLR
  • Fred Mudave Gogo v G4S Security Services (K) Limited
    [2014] eKLR
  • KBS Ltd v Minister for Transport & 2 others
    Nairobi HCC No. 504 of 2008
  • Divecon v Samani
    (1995-1998) 1 EA 48
Jurisdiction invoked
Article 162(2)(a) of the Constitution; section 12 of the Employment Act and the Employment and Labour Relations Court 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, "Ondis v Muhoroni Constituency Development Fund (Cause 202 of 2014) [2016] KEELRC 1870 (KLR)", Case Analysis (2016). Not specified in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1870/eng@2016-06-06

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