Victor Makori v Public Service Commission & another [2019] KEELRC 888 (KLR)
The bottom line
#Kenya's Employment Court ruled that a pension claim cannot be thrown out just because years have passed, since pension is constitutionally protected property.
What this practically means
#Executive summary
#Key legal issues
#Whether limitation under section 90 of the Employment Act and the Limitation of Actions Act defeats the Petition
The preliminary objection fails because the Petition is not purely a contractual dispute but raises a fundamental question on vesting of pension and terminal benefits.
The cause of action accrued around 2000/2001, so the Employment Act, 2007 does not apply. The Respondents argued 43 years had lapsed and that a prior malicious prosecution suit was res judicata. The Petitioner argued constitutional rights violations were not subject to limitation. The Court held pension as property is protected under Article 40 and the Petition raised a fundamental question of vesting of pension, so limitation could not defeat it at a preliminary stage.
Status of pension as a constitutional property right
Pension was recognised as an accrued right/benefit under the retired Constitution and entitlement to pension as property is preserved under Article 40 of the 2010 Constitution.
The Court noted that under the retired Constitution pension was an accrued right/benefit, and that entitlement to pension as a species of property is arguably preserved in Article 40 of the Constitution of Kenya, 2010. It also noted prior decisions of the Court of Appeal and this Court on vesting of pension were relevant to the issue.
Legal principles established
#- A petition raising a fundamental question as to the vesting of pension and/or terminal benefits is not purely a contractual dispute susceptible to defeat on account of the law of limitation.
- Entitlement to pension, as a species of property, is preserved under Article 40 of the Constitution of Kenya, 2010.
Court orders
#- 1.The preliminary objection dated 15 April 2019 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 23(1), 41(1) and 47 of the Constitution as invoked in the Petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Victor Makori v Public Service Commission & another [2019] KEELRC 888 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/888/eng@2019-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.