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ELRCDismissedConstitutional Petition under Article 22(1), 40 & 41 of the Constitution of Kenya 2010, filed 13th March 2017· [2018] KEELRC 1475 (KLR)

Peter Odongo Obura v Secretary of the County Government of Siaya [2018] KEELRC 1475 (KLR)

Employment and Labour Relations Court
19 July 2018
724 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a worker's constitutional petition because employment money claims must be filed within three years—dressing them up as rights violations doesn't extend that deadline.

What this practically means

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Executive summary

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The Petitioner, a former employee of the County Council of Siaya transferred to the Town Council of Awendo on 14th April 2011, filed a constitutional petition on 13th March 2017 seeking declarations that the Respondent violated Articles 40 and 41 of the Constitution by failing to pay a transfer allowance of Kshs.225,000, failing to remit Kshs.279,338 deducted from his salary between October 2009 and June 2011 to Family Bank Ltd, Kisii Branch, and listing him with the Credit Reference Bureau as not credit worthy, which he alleged was defamatory. He sought compensation, refund of the sums, interest at 36% per annum, and costs. The Respondent filed no response despite service, and the Petitioner sought default judgment. The court, however, examined the claims on its own initiative and found that they were in substance employment contractual claims disguised as constitutional violations. Under section 90 of the Employment Act, such claims had to be filed within three years; the refund claim ought to have been filed by June 2014 and the transfer allowance claim by 14th April 2014. Both were statute-barred, and the constitutional framing was an attempt to circumvent limitation, amounting to an abuse of court process. The court further held that no cause of action was disclosed against the Secretary of the County Government of Siaya, the proper successor being the County Government of Siaya. The petition was dismissed with no order as to costs on 19th July 2018.

Key legal issues

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01

Limitation of employment claims pleaded as constitutional petitions

Holding

The claims for unremitted salary deductions and transfer allowance are employment contractual claims subject to the three-year limitation period in section 90 of the Employment Act, and are statute-barred

Reasoning

The Petitioner's claims arose out of his employment: salary deductions not remitted between October 2009 and June 2011, and transfer allowance due on 14th April 2011. Under section 90 of the Employment Act such claims must be filed within three years, or one year from cessation of continuous injury. The refund claim should have been filed by June 2014 and the transfer allowance claim by 14th April 2014. The petition of March 2017 was out of time, and the constitutional garb could not circumvent limitation.

p. 2
02

Correct successor entity and cause of action against the named Respondent

Holding

No cause of action is disclosed against the Secretary of the County Government of Siaya; the successor of the County Council of Siaya is the County Government of Siaya

Reasoning

The Petitioner worked for the County Council of Siaya before his transfer. The petition names the Secretary of the County Government of Siaya as Respondent. The court found that the predecessor of the County Council of Siaya is the County Government of Siaya, not the Secretary, and thus no cause of action was disclosed against the person sued.

p. 2
03

Abuse of court process

Holding

The petition, being a disguised claim brought to circumvent limitation, is an abuse of court process

Reasoning

Having found the underlying claims statute-barred and characterised the petition as a disguise for ordinary employment claims, the court concluded that the petition could not be condoned as it abused the court's process.

p. 2

Legal principles established

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  • Employment contractual claims cannot be disguised as constitutional violations to circumvent the limitation period under section 90 of the Employment Act
  • A petition founded on claims that are statute-barred constitutes an abuse of court process

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Article 22(1), 40 & 41 of the Constitution of Kenya, 2010

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, "Peter Odongo Obura v Secretary of the County Government of Siaya [2018] KEELRC 1475 (KLR)", Case Analysis (2018). Constitutional Petition under Article 22(1), 40 & 41 of the Constitution of Kenya 2010, filed 13th March 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1475/eng@2018-07-19

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