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ELRCDismissedPetition 99 of 2017· [2018] KEELRC 969 (KLR)

John Munene Gathangi v Permanent Secretary Ministry of Interior & Coordination of National Government & 2 others [2018] KEELRC 969 (KLR)

Employment and Labour Relations Court
8 October 2018
HWHellen S. Wasilwa
1,939 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's 2010 Constitution cannot be used to challenge wrongs that happened before it existed, so this ex-chief's retirement complaint failed.

What this practically means

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Executive summary

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The Petitioner, a former Assistant Chief in Ikinu Sub-Location, filed a petition at the Employment and Labour Relations Court alleging violation of his constitutional rights to fair administrative action, fair hearing and dignity arising from his retirement in the public interest on 19th November 2005. He complained that the letter dated 21st February 2005 requiring him to show cause within 21 days was only served on 23rd March 2005, so he was condemned unheard, losing his job and means of livelihood. He sought a declaration that the retirement proceedings and decision were unprocedural, unfair and unconstitutional, general damages, and costs. The Respondents filed a joint Grounds of Opposition contending that their actions were lawful, that the petition did not disclose infringement of rights, that the employment claim was time barred, and that the Petitioner should have pursued an employment and labour relations claim rather than a petition, further arguing that the alleged infractions occurred under the repealed Constitution. The court framed two issues: whether the Petitioner was properly before the Court and whether his rights were infringed. Applying the Anarita Karimi Njeru principle as affirmed in Mumo Matemo, and following Duncan Otieno Waga and Du Plessis v De Klerk, the court held that the Constitution of Kenya 2010 cannot be applied retrospectively to breaches occurring before its promulgation in August 2010, and that the Petitioner had failed to set out his case with the requisite precision. The court found no need to address the second issue and dismissed the petition as improperly before the Court.

Key legal issues

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01

Whether the Petitioner was properly before the Court when the cause of action arose in 2005 under the repealed Constitution but the petition was framed under the Constitution of Kenya 2010.

Holding

The petition was improperly before the Court because the 2010 Constitution cannot be applied retrospectively to infractions occurring before its promulgation, and the case was not pleaded with the precision required.

Reasoning

The court applied the Anarita Karimi Njeru principle that a party alleging constitutional infringement must plead the right infringed and particulars with precision. The Petitioner alleged breaches occurring in 2005 yet relied on Articles 27, 47 and 50 of the 2010 Constitution, which came into force in August 2010. Following Duncan Otieno Waga and Du Plessis v De Klerk, the court held the 2010 Constitution has no retrospective application to pre-promulgation conduct, so remedies could not be granted and the petition was dismissed without addressing the second issue.

p. 4

Legal principles established

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  • The Constitution of Kenya 2010 cannot be applied retrospectively to breaches occasioned before its promulgation.
  • A constitutional petition must set out with reasonable precision the provisions said to be infringed and the manner of infringement.

Court orders

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  1. 1.The petition is dismissed for being improperly before the Court.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 3(1), 20(1)(2), 21, 22, 23, 24, 27, 28, 47, 47(1), 50, 165(3)(b), 264
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

Cases cited (4)

  • Anarita Karimi Njeru vs Republic
    (1979) EKLR
  • Mumo Matemo vs Trusted Society of Human Rights Alliance & Others
    Nairobi Civil Appeal No. 290 of 2012
  • Duncan Otieno Waga vs Attorney General
    Pet No. 94 of 2011
  • Du Plessis & others Vs. De Klerk & Others
    (1996) Zaacc 10
Jurisdiction invoked
Articles 3(1), 20(1)(2), 21, 22, 23, 24, 47(1) and 165(3)(b) of the Constitution of Kenya; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

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, "John Munene Gathangi v Permanent Secretary Ministry of Interior & Coordination of National Government & 2 others [2018] KEELRC 969 (KLR)", Case Analysis (2018). Petition 99 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/969/eng@2018-10-08

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