Pascal Barasa Olaimo & 75 others v Attorney General [2019] KEELRC 947 (KLR)
The bottom line
#Kenya's Employment Court ruled that former soldiers can sue over 1982 torture despite the decades-long delay, because no time limit applies to rights violations claims.
What this practically means
#Executive summary
#Key legal issues
#Whether limitation statutes apply to constitutional petitions alleging fundamental rights violations
No limitation period applies to such petitions, but the court is entitled to consider inordinate delay when deciding whether to grant relief
Relying on Joan Akinyi Kaba Sellah, the court noted a consistent line of authority holding that there is no limitation for enforcing fundamental rights. However, under the former Section 84, courts may consider whether justice is served by vexing a respondent with a stale claim, and petitioners must justify prolonged delays.
Whether the petitioners' 32-year delay was justified
The delay was justified: the violations occurred under the Moi regime, petitioners feared surveillance and had financial and geographical handicaps, placing the claim in the transitional justice category
The court held that reasons for delay under the oppressive regime were recognized, but post-2010 such reasons lose weight. Balancing these factors, and noting parallel cases (Kagume, Gitau, Gichohi, Kaniki) arising from the 1982 attempted coup, the court found the petitioners' reasons, albeit with hesitation, sufficient.
Purpose of limitation enactments
Limitation law protects defendants from stale claims after loss of evidence but does not extinguish claims
Citing Rawel vs Rawel, the court adopted the statement that limitation prevents prosecution of stale claims and protects a defendant who has lost evidence, but does not extinguish claims. This informed the discretionary balancing in the transitional justice context.
Legal principles established
#- There is no limitation period with respect to constitutional petitions alleging violation of fundamental rights, although the court may consider inordinate delay when deciding whether to grant relief
- Prolonged delay degrades the state's ability to defend claims and reasons for delay cease to carry weight as the 2010 Constitution enlarged space for ventilation of past violations; a petitioner must justify prolonged delays
Court orders
#- 1.The preliminary objection raised on limitation vide application dated 21st January 2019 is dismissed
- 2.The petition to proceed on merits as earlier scheduled
- 3.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over constitutional petition alleging violation of fundamental rights under Section 70(a) and 74(1) of the former Constitution, with enforcement sought under Section 84 of the erstwhile Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muchira v Teachers Service Commission (Employment and Labour Relations Petition E045 of 2024) [2025] KEELRC 1286 (KLR)[2025] KEELRC 1286 (KLR)7 May 2025
Cite this brief
#Cite this brief
Caselaw, "Pascal Barasa Olaimo & 75 others v Attorney General [2019] KEELRC 947 (KLR)", Case Analysis (2019). Kisumu ELRC Petition No. 38 of 2016 (originally High Court Kitale Petition No. 10 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/947/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.