Charity Wanjiru Ndegwa & 2 others v Attorney General & another [2018] KEELRC 1848 (KLR)
The bottom line
#Kenya's High Court struck out a 30-year-late workers' rights petition, ruling that unexplained delay and the wrong legal route doom even serious claims.
What this practically means
#Executive summary
#Key legal issues
#Improper procedure / constitutional avoidance in employment-related constitutional petitions
The court accepted (via Gabriel Mutava) that where a contract of employment is the proper entry point, invoking the constitutional route is misguided; the Constitution should not be a thoroughfare for every common grievance.
The 2nd Respondent argued, citing Gabriel Mutava, that claims for unpaid dues under a contract of employment belong in ordinary civil or employment fora, and that the mere allegation of a rights infringement does not convert a contractual claim into a constitutional matter. The court's disposal, however, rested principally on delay rather than on this ground alone.
Laches / inordinate delay in constitutional claims
A claim arising some 30 years earlier, with no explanation for the delay, is unconscionable to permit and is fit for striking out.
The court held that the alleged infractions occurred around 1984-1986 and no explanation was offered. It invoked the line of authority in Njuguna Githiru and Abraham Kaisha Kanzika holding that even absent a limitation period, unexplained delay of many years justifies dismissal, and distinguished the repressive-climate justification applicable to Nyayo House torture cases. Witnesses' memories fade, documents are lost, and litigation so late is unconscionable.
Suitability of constitutional petitions for disputed facts and propriety of leave obtained in the magistrates' court
Raised by the 1st and 2nd Respondents (including failure to comply with an order to advertise), but not separately determined in the closing reasoning.
The 1st Respondent submitted that the Petition was unsuitable for determining serious disputed facts and that the Petitioners failed to comply with a Chief Magistrate's Court order to advertise. The 2nd Respondent argued leave had been sought in the wrong forum. The court's final disposition rested on delay; these grounds were not individually ruled upon in the final paragraphs.
Legal principles established
#- Where there exists a sufficient and adequate alternative avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could be dealt with in that other forum
- Inordinate, unexplained delay in bringing a constitutional claim may render the suit fit for striking out as an abuse of process, even absent a specified limitation period
Court orders
#- 1.The Petition is struck out
- 2.Costs of the Petition to the Respondents
- Jurisdiction invoked
- Articles 22(2)(b) and 258(1)(b) of the Constitution of Kenya, 2010 (enforcement of the Bill of Rights by a person acting on behalf of a group or class of persons)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charity Wanjiru Ndegwa & 2 others v Attorney General & another [2018] KEELRC 1848 (KLR)", Case Analysis (2018). Not stated in the extract (Petition filed in the High Court; leave earlier sought in the Chief Magistrate's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1848/eng@2018-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.