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ELRCDismissedNot stated in judgment· [2019] KEELRC 268 (KLR)

Christine Mbithe Muindu & 39 others v Barclays Bank of Kenya Limited [2019] KEELRC 268 (KLR)

Employment and Labour Relations Court
22 November 2019
MOMAUREEN ONYANGO
1,090 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Respondent raised a preliminary objection against the Petitioners' constitutional petition, which alleged that their rights under articles 2, 10, 27, 28, 41, 43 and 47 of the Constitution were violated when the Respondent issued a voluntary early retirement exit package favouring employees who had worked for a shorter time. The Respondent argued on three grounds: that section 90 of the Employment Act bars proceedings arising out of the Act or a contract of service not commenced within 3 years; that the cause of action arose in 2013, some 6 years before filing; and that the petition, though dressed as a constitutional claim, is purely a labour relations dispute. Relying chiefly on Gabriel Mutava v Managing Director Kenya Ports Authority, the Respondent submitted the petition was an attempt to circumvent limitation and an abuse of process. The Petitioners countered that no time limit applies to constitutional violations, that the question of whether a petition raises constitutional issues must be determined at the substantive stage, and cited several authorities supporting constitutional adjudication of employment-related discrimination. The court framed two issues: whether the petition is time barred and whether it raises constitutional issues. Holding that the dispute over discriminatory payment of terminal benefits is an employment matter adequately addressed under section 5 of the Employment Act, and that the petition was a device to circumvent section 90's limitation period, the court upheld the preliminary objection and dismissed the petition with no orders for costs.

Key legal issues

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01

Whether the Petition is time barred under section 90 of the Employment Act

Holding

Yes; the cause of action arose about 6 years before filing, beyond the 3-year limitation period

Reasoning

The Petitioners ceased employment around 6 years earlier. Section 90 of the Employment Act requires employment and labour relations proceedings to be instituted within 3 years of the act complained of. The dispute over the discriminatory exit package is an employment matter adequately addressed under section 5 of the Employment Act, and the petition was a device to circumvent limitation.

p. 3
02

Whether the Petition raises constitutional issues

Holding

No; it is purely a labour relations dispute about discrimination in terminal benefits, adequately covered by the Employment Act

Reasoning

The discrimination alleged in the payment of a voluntary early retirement exit package is an employment matter addressable under section 5(3) of the Employment Act, which prohibits discrimination on grounds including those invoked. Reliance on constitutional articles did not convert the dispute into a constitutional petition.

p. 4

Legal principles established

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  • Where a right is regulated by legislation, the legislation, not the underlying constitutional right, is the primary means of giving effect to that right
  • A labour dispute disguised as a constitutional petition to escape limitation under section 90 of the Employment Act will be struck out

Court orders

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  1. 1.The Respondent's preliminary objection succeeds
  2. 2.The petition is dismissed with no orders for costs

Authorities

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Legislation

  • Employment Act 2007section 90
  • Employment Act 2007section 87
  • Employment Act 2007section 5(3)
  • Constitution of Kenya, 2010article 50
  • Constitution of Kenya, 2010articles 2, 10, 27, 28, 41, 43, 47

Cases cited (10)

  • Gabriel Mutava & 2 Others vs. Managing Director Kenya Ports Authority & Another
    [2016] eKLR
  • Peter Lubale Lubullellah vs. Kenya National Union of Teachers
    [2017] eKLR
  • Peter Ndegwa Nderitu vs. Teachers Service Commission
    [2019] eKLR
  • Beatrice Wanjiru and 2 Others vs. The Attorney General & Another
    [2017] eKLR
  • Munir Sheikh Ahmed vs. National Bank of Kenya
    [2018] eKLR
  • Barclays Bank of Kenya & Another vs. Gladys Muthoni & 20 Others
    [2018] eKLR
  • United States International University (USIU) vs. Attorney General & 2 Others
    [2012] eKLR
  • Clement Ernest Opiyo Murenga vs. Principal Secretary, Treasury & Another
    [2017] eKLR
  • Agnes Wachu Wamae & 104 Others vs. Barclays Bank of Kenya
    [2018] eKLR
  • Edward Akong'o Oyugi & 2 Others vs. The Attorney General
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; Employment Act 2007

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, "Christine Mbithe Muindu & 39 others v Barclays Bank of Kenya Limited [2019] KEELRC 268 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/268/eng@2019-11-22

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