Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the extract provided· [2020] KEELRC 1631 (KLR)

Daniel Kago Gachanja v Inspector General & 2 others [2020] KEELRC 1631 (KLR)

Employment and Labour Relations Court
7 February 2020
OMOnesmus N. Makau
1,416 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck out a dismissed police officer's unfair termination suit because it was filed over five years late, ruling constitutional language can't override limitation deadlines.

What this practically means

#

Executive summary

#
The Respondents raised a preliminary objection dated 5 January 2018 seeking the striking out of the Claimant's suit on grounds of limitation and abuse of process. The Claimant, a former Kenya Police officer dismissed on 30 September 2008, filed suit on 29 January 2018 alleging unfair termination under the Force Standing Orders, pleading violations of Articles 27(1), 35, 47 and 50 of the Constitution. The Respondents argued the suit was time barred, relying on section 90 of the Employment Act and the Limitations of Actions Act, while the Claimant countered that section 3(2) of the Employment Act excludes the Kenya Police, and that constitutional violations carry no limitation period. The court applied the Mukisa Biscuit test and held the objection was a valid pure point of law. It agreed that section 90 of the Employment Act does not apply to the Kenya Police, but held the suit was founded purely on contract of employment, the constitutional provisions being merely a disguise to circumvent limitation statutes. Section 3(2) of the Public Authorities Limitation of Actions Act bars contract proceedings against Government after three years; the limitation period expired on 11 January 2013, over five years before filing. Limitation goes to jurisdiction. The court struck out the suit with no costs. Authorities cited by the Claimant on constitutional claims were distinguished on their facts.

Key legal issues

#
01

Whether the claim, though pleaded with constitutional provisions, is founded on contract and therefore subject to limitation under the Public Authorities Limitation of Actions Act

Holding

The suit is founded purely on contract of employment and is time barred under section 3(2) of the Public Authorities Limitation of Actions Act

Reasoning

The court found the constitutional articles pleaded were stated conveniently to articulate an unfair termination claim rather than a genuine constitutional petition. Section 3(2) of the Public Authorities Limitation of Actions Act bars contract proceedings against Government after three years. Dismissal communicated on 30.9.2008 and appeal dismissed 11.1.2010, giving expiry on 11.1.2013. Suit filed 29.1.2018, over five years late.

p. 2
02

Whether section 90 of the Employment Act applies to a claim by a Kenya Police officer

Holding

Section 90 of the Employment Act does not apply to Kenya Police by dint of section 3(2)(c) of the Employment Act

Reasoning

The court agreed with the claimant that section 3(2)(c) of the Employment Act excludes the Kenya Police from the Act, hence section 90's three-year limit did not apply. However, the Public Authorities Limitation of Actions Act applied instead, and under it the suit was equally time barred.

p. 2
03

Whether the preliminary objection is a valid one in law

Holding

The PO raises a pure point of law on limitation and fits within the four walls of a valid preliminary objection

Reasoning

Relying on Mukisa Biscuit, the court held that limitation of time is a pure point of law capable of terminating the entire suit, and therefore properly raised as a preliminary objection.

p. 2

Legal principles established

#
  • The issue of limitation goes to the jurisdiction of the court and is not a mere technicality
  • Proceedings founded on contract against the Government must be brought within three years under the Public Authorities Limitation of Actions Act
  • A claim pleaded as constitutional violation may be struck out where the constitutional provisions are merely a disguise to circumvent limitation statutes

Court orders

#
  1. 1.The Preliminary Objection succeeded and the suit was struck out for being time barred
  2. 2.No costs awarded - suit struck out with no costs

Authorities

#

Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007section 3(2)(c)
  • Limitations of Actions ActCap 21 Laws of Kenya
  • Public Authorities Limitation of Actions Actsection 3(2)
  • Public Authorities Limitation of Actions Actsection 2
  • Constitution of Kenya, 2010Articles 27(1), 35, 47 and 50
  • ELRC Procedure Rules, 2016Rule 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012not stated

Cases cited (13)

  • Hilarion Mwabolo vs. Kenya Commercial Bank
    [2013] eKLR
  • Timothy M. Mukalo vs. Reuben Alubale Shiramba & 3 Others
    [2005] eKLR
  • Divecon vs. Samani
    [1995-1998] 1 EA 48
  • Fred Mudave Gogo vs. G4S Security Services (K) Limited
    [2014] eKLR
  • Guantai Nkunja vs. National Police Service Commission & 2 Others
    [2017] eKLR
  • Joseph Wambugu Kimenju vs. Attorney General
    [2013] eKLR
  • Ol Pejeta Ranching Limited vs. David Wanjau Muhoro
    [2017] eKLR
  • Eric Sangura Nasoko vs. National Police Service Commission & 4 Others
    [2018] eKLR
  • Jane Atieno Otieno vs. National Police Service Commission & 3 Others
    [2018] eKLR
  • Felister Waithiegeni Mugweru vs. National Police Service Commission & 2 Others
    [2018] eKLR
  • Beatrice Wanjiru & 2 Others vs. The Attorney General & Another
    [2017] eKLR
  • Ezekiel Nyangoya Okemwa vs. Kenya Marine & Fisheries Research Institute
    [2016] eKLR
  • Mukisa Biscuit Manufacturing Company Limited vs. West End Distributors Limited
    [1969] EA 696
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment contract claims; claim pleaded under Article 27(1), 35, 47 and 50 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (6)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Daniel Kago Gachanja v Inspector General & 2 others [2020] KEELRC 1631 (KLR)", Case Analysis (2020). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1631/eng@2020-02-07

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