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ELRCStruck OutNot stated in judgment· [2019] KEELRC 577 (KLR)

Reuben Ngila Kitonyi v Central Bank of Kenya [2019] KEELRC 577 (KLR)

Employment and Labour Relations Court
11 October 2019
OMONESMUS N. MAKAU
2,505 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a dismissal claim filed 22 years late, confirming you cannot dodge legal filing deadlines by dressing a contract dispute as a constitutional petition.

What this practically means

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Executive summary

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The petitioner, employed by the respondent from 1977 and dismissed as a Senior Clerk on 26/9/1996 for gross misconduct, filed a constitutional petition on 22/8/2018 alleging that his termination without a hearing and his differential treatment infringed his rights under the retired Constitution (sections 77 and 82) and the current Constitution (Articles 27, 41, 47 and 50). He sought reinstatement, retirement benefits, pension, compensation for unfair termination and general damages. The respondent raised a preliminary objection that the suit was time barred under section 4 of the Limitation of Actions Act and section 90 of the Employment Act, and that the petition was a private law employment dispute disguised as a constitutional claim to circumvent limitation. The court first determined the nature of the cause of action. It found the dismissal was for gross misconduct contrary to staff rules forming part of the contract, governed by section 16 of the repealed Employment Act which permitted summary dismissal without a hearing and contained no concept of unfair termination. The petition was therefore founded on a purely private law breach of contract claim. The court held the suit was time barred, filed more than 22 years after the cause of action arose, and rejected the petitioner's attempt to circumvent limitation through a constitutional petition, noting the precedents he relied on were distinguishable because they arose under the current Employment Act and Bill of Rights. The preliminary objection was upheld and the petition struck out with costs.

Key legal issues

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01

Whether the petition is founded on private law contract or constitutional violation

Holding

The petition is founded on a purely private law dispute over breach of contract of employment and not on public law constitutional violation

Reasoning

The cause of action related to termination of employment for gross misconduct contrary to staff rules which formed part of the contract, subject to section 16 of the repealed Employment Act which allowed summary dismissal for gross misconduct without a hearing. The petitioner did not demonstrate the cause fell within public law to be agitated by constitutional reference.

p. 3
02

Whether the suit is time barred

Holding

Yes - filed over 22 years after the cause of action, barred by section 4 of the Limitation of Actions Act and section 90 of the Employment Act

Reasoning

The employment contract was terminated on 26.9.1996 and the petition filed on 22.8.2018. Section 4 of the Limitation of Actions Act prohibited suits founded on contract after six years and section 90 of the Employment Act after three years. Both periods had long lapsed and no court may entertain such a suit or extend limitation.

p. 3
03

Whether a constitutional petition can circumvent limitation of actions

Holding

No - courts should not accept the mischief of invoking constitutional provisions to circumvent statutory limitation periods

Reasoning

Allowing such circumvention would extinguish the defence of limitation of actions and prejudice respondents, undermining equal accrual of the right to fair hearing between parties. The precedents relied on by the petitioner were distinguishable as their causes of action were grounded in the current Employment Act and the Bill of Rights, not the repealed regime.

p. 3

Legal principles established

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  • A litigant cannot invoke constitutional provisions to circumvent statutory limitation of actions defence in a private law employment dispute

Court orders

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  1. 1.The respondent's Preliminary Objection filed on 6.12.2018 is upheld
  2. 2.The petition is struck out with costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Act (re repealed Act, Cap.226)section 16
  • Employment Actsection 3
  • Limitation of Actions Actsection 4
  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticles 27, 41, 47, 50(1),(2)(f)(k)
  • Retired Constitution of Kenyasections 77(1),(2)(d) and 82
  • Penal Codesection 349

Cases cited (7)

  • Divecon limited v Samani
    [1995-1998] 1 EA 48
  • Josephat Ndirangu v Henkel Chemicals (EA) Ltd
    [2013] eKLR
  • Mwangi Stephen Mureithi v Daniel Toroitich Arap Moi
    [2011] eKLR
  • Moses A Segite & 29 others v Kenya Flouspar company Ltd
    [2015] eKLR
  • Njuguna Githiru v Attorney General
    [2016] eKLR
  • Peris Nyambura Kimani v Dalbit Petroleum Limited
    [2015] eKLR
  • Misia Manuguti Kadeyi v Masai Mara University & 3 others
    [2018] eKLR
Jurisdiction invoked
Constitutional petition alleging violation of fundamental rights and freedoms under the retired Constitution and the Constitution of Kenya, 2010; preliminary objection on limitation under section 90 of the Employment Act and section 4 of the Limitation of Actions Act

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, "Reuben Ngila Kitonyi v Central Bank of Kenya [2019] KEELRC 577 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/577/eng@2019-10-11

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