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ELRCDismissedNot stated in judgment· [2019] KEELRC 260 (KLR)

Bernard Antony Kimwere v Kenya Ports Authority [2019] KEELRC 260 (KLR)

Employment and Labour Relations Court
21 November 2019
JRJames Rika
333 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Ports Authority employees must sue within 12 months of dismissal — a former worker who waited three years lost his unfair dismissal claim.

What this practically means

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Executive summary

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The Respondent, Kenya Ports Authority, filed a Notice of Preliminary Objection on 24th October 2019 based on Section 66 of the KPA Act, which imposes a 12-month limitation on claims against the Authority. The Claimant's dismissal letter was dated 23rd March 2012, but the Claim was not filed until 23rd May 2015, roughly three years after dismissal. The Claimant asserted that he had initiated an internal appeal process but was never advised of its outcome by the Respondent. The Court noted that the arguments advanced by the parties on Section 66 had been made before, and were captured in the decisions supplied by the Respondent through its list of 21st November 2019. The Claimant's submissions on the effect of Section 66 were found persuasive. However, the Court expressly disagreed with the reasoning and decision of the Court of Appeal in KPA v. Cyrus Maina Njoroge, a decision supplied by the Respondent. Despite this disagreement, the Court held that it could not disregard decisions of the Court of Appeal, which as a Superior Court binds it. The Court therefore deferred to that decision, dismissed the Claim under Section 66 of the KPA Act, made no order on costs, directed that parties be supplied with a copy of the Ruling and Proceedings to enable them pursue their arguments on appeal, and closed the file. The judgment was dated and delivered at Mombasa on 21st November 2019 by James Rika, Judge.

Key legal issues

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01

Limitation under Section 66 of the KPA Act

Holding

The claim, filed about 3 years after the dismissal letter dated 23rd March 2012, is time-barred and is dismissed

Reasoning

The letter of dismissal was dated 23rd March 2012 and the claim was filed on 23rd May 2015, some three years later, far outside the 12-month limitation in Section 66 of the KPA Act. The Claimant argued he initiated an internal appeal whose outcome was never communicated, and his submissions on the effect of Section 66 were persuasive, but the Court of Appeal had already decided the same arguments in KPA v. Cyrus Maina Njoroge, and that decision binds this Court. The claim was therefore dismissed under Section 66.

p. 2
02

Stare decisis - binding effect of Court of Appeal decisions

Holding

The Court deferred to the Court of Appeal's decision in KPA v. Cyrus Maina Njoroge, despite disagreeing with it, and advised the Claimant to pursue his arguments on appeal

Reasoning

The Court expressly stated it did not agree with the reasoning and decision of the Court of Appeal in KPA v. Cyrus Maina Njoroge. However, decisions of a Superior Court are binding on this Court, which cannot disregard them. The Court therefore deferred to that decision, advised the Claimant to pursue his arguments at the Court of Appeal, and supplied the parties with proceedings and the Ruling to enable an appeal.

p. 1

Legal principles established

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  • Section 66 of the KPA Act imposes a 12-month limitation on claims against the KPA
  • An ELRC judge cannot disregard decisions of the Court of Appeal, which are binding

Court orders

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  1. 1.The Claim is dismissed under Section 66 of the KPA Act
  2. 2.No order on the costs
  3. 3.Parties shall be supplied with a copy of the Ruling and Proceedings, to enable them pursue their arguments on appeal
  4. 4.The file is closed

Authorities

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Legislation

  • Kenya Ports Authority ActSection 66

Cases cited (1)

  • KPA v. Cyrus Maina Njoroge
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (statutory provision not stated in the judgment)

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, "Bernard Antony Kimwere v Kenya Ports Authority [2019] KEELRC 260 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/260/eng@2019-12-05

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