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ELRCPartially AllowedNot stated in the judgment· [2017] KEELRC 1753 (KLR)

Jackson Macharia Maina v Attorney General & another [2017] KEELRC 1753 (KLR)

Employment and Labour Relations Court
24 February 2017
MNMathews Nderi Nduma
720 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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The Employment and Labour Relations Court at Nairobi, presided over by Mathews Nderi Nduma, Principal Judge, delivered a ruling on a notice of preliminary objection dated 2 June 2016 raised by the 2nd respondent seeking the striking out of the petitioner's petition as time barred under Section 90 of the Employment Act and Section 4(1) of the Limitation of Actions Act. The petitioner, employed from 1986 and converted to a permanent general worker in 1989, was summarily dismissed on 9 July 2009 under Clause 25 of the 2009/2010 CBA on allegations of theft of two transformers. He was arrested, charged and subsequently acquitted, and sued in April 2016 alleging violations of Articles 27, 28, 29, 32, 33, 35, 41(1), 43(1)(e), 47, 48 and 50(1) of the Constitution, seeking declarations, reinstatement or compensatory damages. The court held that the claim against the former employer, the 2nd respondent, was a simple claim for unlawful and unfair dismissal that raised no constitutional issues, and having been filed about seven years after the cause of action arose with no application for extension of time, it was struck out. However, prayer 3, seeking a declaration against the Hon. Attorney General for contravention of Article 157(11) of the Constitution, raised constitutional issues and was allowed to proceed. The court issued no order as to costs and directed the matter to proceed to hearing against the 1st respondent only.

Key legal issues

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01

Whether limitation periods bar a constitutional petition founded on an employment dispute

Holding

The claim against the 2nd respondent, though dressed as a constitutional petition, is a simple employment claim for unlawful and unfair dismissal and terminal benefits; being time barred with no extension of time sought, it was struck out.

Reasoning

The court distinguished the claim against the former employer from the claim against the Attorney General. The employer claim was purely contractual/statutory compensation for unfair termination, filed about seven years after termination without leave, and therefore caught by the limitation provisions invoked in the preliminary objection. Only prayer 3, against the Attorney General under Article 157(11), raised constitutional issues and could proceed.

p. 2
02

Whether the claim against the Hon. Attorney General raises constitutional issues

Holding

Prayer 3, seeking a declaration against the Attorney General for contravention of Article 157(11), raises constitutional issues and was not struck out.

Reasoning

The court held that while the employer claim was contractual, the claim against the Attorney General concerned the alleged contravention of the constitutional duty of the DPP under Article 157(11) to have regard to public interest and to avoid abuse of the legal process in prosecuting the petitioner. That prayer raised constitutional issues and the matter was directed to proceed to hearing against the 1st respondent.

p. 2

Legal principles established

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  • A petition founded on an ordinary claim for unlawful and unfair termination of employment is subject to statutory limitation and cannot circumvent it by being framed as a constitutional petition.
  • Where a suit is partly struck out on a preliminary objection, the remaining claim may proceed against the other respondent.

Court orders

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  1. 1.The suit is struck out as against the 2nd respondent
  2. 2.The matter is directed to proceed to hearing in respect of the 1st respondent
  3. 3.No order as to costs
Jurisdiction invoked
Article 41(1) and Articles 27, 28, 29, 32, 33, 35, 43(1), 47, 48 and 50(1) of the Constitution of Kenya 2010 (employment and labour relations jurisdiction)

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, "Jackson Macharia Maina v Attorney General & another [2017] KEELRC 1753 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1753/eng@2017-02-24

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