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ELRCOtherCause No. 573 of 2017· [2019] KEELRC 2191 (KLR)

Mudhari T Anwar v Kenya Ports Authority [2019] KEELRC 2191 (KLR)

Employment and Labour Relations Court
22 February 2019
JRJames Rika
599 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenya Ports Authority worker lost a Kshs. 9.5 million claim because it was filed more than one year after retirement, as required by law.

What this practically means

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Executive summary

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The Claimant, employed by the Kenya Ports Authority in 1987 and confirmed as a Driver on permanent and pensionable terms, was interdicted for careless driving and retired in the public interest on 2nd January 2013. He appealed twice internally, with the second appeal heard on 17th July 2013, after which there was no communication from the Respondent. He filed this claim on 12th July 2017 seeking reinstatement or terminal benefits and compensation totalling Kshs. 9,492,750. The Respondent filed a preliminary objection contending the claim was time-barred under Section 66 of the Kenya Ports Authority Act, which requires employment disputes to be filed within one year, and also outside the three-year limit under Section 90 of the Employment Act. It relied chiefly on the Court of Appeal decision in Kenya Ports Authority v. Cyrus Maina Njoroge. Rika J expressed disagreement with that decision, preferring the interpretation of analogous provisions by Ojwang J in the Postal Corporation case and Onguto J in the Telkom Kenya case, that such limitation sections target the corporations' statutory activities rather than in-house employment relations. Nevertheless, bound by stare decisis as articulated in Juma Abdalla Gafo v. Postal Corporation of Kenya, the Court held the claim was filed out of time and rejected it for want of jurisdiction. It made no order on costs and directed that future KPA employment claims must comply with Section 66 as interpreted by the Court of Appeal.

Key legal issues

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01

Applicability of Section 66 of the Kenya Ports Authority Act to employment disputes

Holding

The Court personally prefers the interpretation that Section 66 does not govern in-house employment relations, but is bound by the Court of Appeal's contrary ruling in Kenya Ports Authority v. Cyrus Maina Njoroge.

Reasoning

The Court stated it does not agree with the Court of Appeal's decision, preferring Ojwang J's interpretation of the analogous Section 24 of the Postal Corporation Act, under which such limitation provisions apply to statutory activities of the Corporation rather than its employment relations. However, under the doctrine of stare decisis as applied in Juma Abdalla Gafo v. Postal Corporation of Kenya, the E&LRC must defer to the Court of Appeal. The Claim, filed on 12th July 2017 over a retirement of 2nd January 2013, was therefore out of time and the Court lacked jurisdiction.

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02

Whether internal dispute resolution mechanisms extend the Section 66 limitation period

Holding

No - the 1-year period runs regardless of time spent on internal dispute resolution.

Reasoning

The Court of Appeal in Kenya Ports Authority v. Cyrus Maina Njoroge affirmed that Section 66 applies to contracts of employment at the KPA, and that employees must file employment disputes within 1 year of termination regardless of the time taken in engaging and exhausting internal dispute resolution mechanisms available at the workplace. This binding interpretation defeated the Claimant's appeals against retirement from the limitation computation.

p. 1

Legal principles established

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  • The Employment and Labour Relations Court must defer to the decisions of the Court of Appeal even where it disagrees, so employment claims against the KPA must be filed within 1 year under Section 66 of the Kenya Ports Authority Act

Court orders

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  1. 1.The Claim is rejected for want of jurisdiction under Section 66 of the Kenya Ports Authority Act
  2. 2.No order on the costs

Authorities

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Legislation

  • Kenya Ports Authority Act, Cap 391 Laws of KenyaSection 66
  • Employment Act 2007Section 90
  • Postal Corporation of Kenya ActSection 24

Cases cited (4)

  • Kenya Ports Authority v. Cyrus Maina Njoroge
    Civil Appeal No. 89 of 2017
  • Postal Corporation Act of Kenya v. Peter Achar & Another
    [2012] e-KLR
  • Telkom Kenya Limited v. Kenya Railways Corporation
    [2018] e-KLR
  • Juma Abdalla Gafo v. Postal Corporation of Kenya
    Cause Number 812 of 2016
Jurisdiction invoked
Section 66 of the Kenya Ports Authority Act, Cap 391 (limitation bar); Employment Act 2007, Section 90

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mudhari T Anwar v Kenya Ports Authority [2019] KEELRC 2191 (KLR)", Case Analysis (2019). Cause No. 573 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2191/eng@2019-02-22

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