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ELRCStruck OutPetition filed 22nd June 2015 (number not stated in judgment)· [2018] KEELRC 1329 (KLR)

Job Cheruiyot Kerui v Attorney General & 2 others [2018] KEELRC 1329 (KLR)

Employment and Labour Relations Court
17 July 2018
HWHellen Wasilwa
1,935 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former police officer lost his case because he sued under Kenya's 2010 Constitution for a dismissal that happened back in 2006.

What this practically means

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Executive summary

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The Petitioner, a former Ag Superintendent of Police dismissed in 2006 following two robberies that occurred in his command area on the night of 11th/12th January 2006, petitioned the court in June 2015 seeking damages for violations of Articles 27, 28, 47, 50 and 236 of the 2010 Constitution. He alleged he was dismissed without a fair disciplinary procedure, based on a repealed regulation, without any absence report, and that his appeals went unheeded. The 1st and 3rd Respondents opposed, arguing the Petition was an ordinary employment claim couched as a constitutional petition to circumvent limitation under Section 90 of the Employment Act, that the dismissal followed due process, and that the Petitioner was at a bar on the material night. The court framed its analysis on the Anarita Karimi Njeru precision principle, as affirmed in Mumo Matemo. It found that although the events complained of occurred between January and April 2006, the Petition alleged infringements of the 2010 Constitution, and that the 2010 Constitution cannot be applied retrospectively, following Duncan Otieno Waga. Concluding that the Petitioner failed to plead his case with the required precision, the court was unable to grant the remedies sought and struck out the Petition with costs on 17th July 2018 (Wasilwa J).

Key legal issues

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01

Retrospective application of the 2010 Constitution

Holding

The 2010 Constitution cannot be applied to breaches occurring before its promulgation in August 2010; pre-2010 acts must be construed by reference to the former Constitution

Reasoning

The court relied on Article 264, under which the former Constitution stood repealed on the effective date subject to the Sixth Schedule, and adopted Majanja J's reasoning in Duncan Otieno Waga that constitutional adjudication provisions do not empower a court to apply the Constitution retrospectively. Since the Petitioner's dismissal occurred between January and April 2006, alleging infringement of 2010 Constitution rights was misconceived.

p. 3
02

Precision in pleading constitutional violations (Anarita Karimi Njeru)

Holding

The Petitioner failed to set out his case with the required precision, having pleaded infringements of the 2010 Constitution for events predating it

Reasoning

Following Anarita Karimi Njeru as affirmed in Mumo Matemo, a petitioner must specify the right infringed and the particulars of infringement. The court found the Petitioner alleged breaches occurring January to April 2006 but filed a Petition alleging infringement of rights under the 2010 Constitution, thereby failing the precision standard and disentitling him to remedies.

p. 3

Legal principles established

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  • A person seeking redress on a matter involving the Constitution must set out with reasonable precision the complaint, the provisions said to be infringed and the manner of infringement
  • The Constitution of Kenya 2010 does not apply retrospectively to acts done before its promulgation

Court orders

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  1. 1.Strike out the Petitioner's Petition
  2. 2.Costs of the Petition to the 1st and 3rd Respondents
Jurisdiction invoked
Articles 3, 19, 20, 21, 22, 23, 162 and 165 of the Constitution of Kenya 2010 (as pleaded by the Petitioner)

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, "Job Cheruiyot Kerui v Attorney General & 2 others [2018] KEELRC 1329 (KLR)", Case Analysis (2018). Petition filed 22nd June 2015 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1329/eng@2018-07-17

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