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ELRCStruck OutNot stated in judgment· [2020] KEELRC 1765 (KLR)

Jackson Kabingu Gichohi v Attorney General [2020] KEELRC 1765 (KLR)

Employment and Labour Relations Court
31 January 2020
2,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a worker's petition filed more than three years after dismissal, confirming employment claims expire in three years no matter how they're dressed up.

What this practically means

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Executive summary

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The respondent filed a notice of preliminary objection dated 15th August 2016 seeking striking out of the petitioner's constitutional petition on three grounds: that the suit was time barred under Section 90 of the Employment Act, 2007; that it was an abuse of court process; and that it was incompetent. Counsel for the respondent relied on Mukisa Biscuits for the definition of a preliminary objection, and on Banking Insurance and Finance Union v Bank of India, Fredrick Otieno Onono v Attorney General, Ndirangu v Henkel Chemicals, Josephat Ndirangu v Henkel Chemicals and Alphonse Mwangemi Munga v Africa Safari Club to argue that employment claims must be filed within three years, that pendency of criminal proceedings does not extend limitation, and that litigants cannot circumvent the Employment Act by filing petitions invoking Article 41. The petitioner countered that he was dismissed without a hearing, awaited the outcome of Kibera Criminal Case No. 3495 of 2008 (acquittal on 11th April 2013), attempted internal resolution with the Ministry, and had a right to a fair hearing under Article 50(1). The court found the petitioner was aware of his dismissal long before the acquittal and had not been truthful. Even taking the acquittal date as accrual, the suit filed on 29th August 2016 exceeded the three-year limitation period, and internal resolution efforts do not expand it. The court further agreed that the petition was a simple employment dispute filed to circumvent Section 90 and was an abuse of court process. The preliminary objection succeeded and the petition was struck out. No express costs order appears in the disposition despite the objection seeking costs.

Key legal issues

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01

Limitation under Section 90 of the Employment Act

Holding

The suit was statute barred; even assuming the cause of action arose on the petitioner's acquittal on 11th April 2013, the suit filed on 29th August 2016 exceeded the three-year limitation period.

Reasoning

The court found the petitioner must have known of his dismissal, having testified in the criminal case that he was sacked because of the case. Even adopting the acquittal date as the accrual date, the filing on 29th August 2016 fell outside the three-year window set by Section 90. Attempts at internal resolution of the dispute with the Ministry did not toll or extend the limitation period, per the Onono decision.

p. 3
02

Whether the constitutional petition circumvented the Employment Act

Holding

Yes; the petition was a simple employment dispute dressed as a constitutional petition to evade limitation, and was an abuse of court process.

Reasoning

Relying on Josephat Ndirangu v Henkel Chemicals and Alphonse Mwangemi Munga v Africa Safari Club, the court held that parties should use statutory remedies and that constitutional provisions should not be used as a general substitute for ordinary procedures where no genuine constitutional issue is raised. Filing a petition solely to escape a time bar is an abuse of process.

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03

Credibility of the petitioner's claim of ignorance of dismissal

Holding

The court found the petitioner was not truthful in claiming he learned of his dismissal only after obtaining the criminal judgment.

Reasoning

The criminal case judgment recorded that the petitioner testified he had been sacked because of the case, meaning he knew of the dismissal. The court also noted he carefully selected documents to avoid revealing the dismissal date, indicating awareness and deliberate withholding of information.

p. 3

Legal principles established

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  • Claims under the Employment Act or a contract of service must be instituted within three years of the act, neglect or default complained of, and within twelve months of cessation of a continuing injury.
  • A litigant may not circumvent the Employment Act's limitation provisions by filing a constitutional petition raising what is essentially a simple employment dispute; such a petition is an abuse of court process.
  • Internal dispute-resolution efforts with an employer do not expand the limitation period under Section 90 of the Employment Act.

Court orders

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  1. 1.The petition is struck out for being statute barred and an abuse of court process
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 90) and Article 41 of the Constitution invoked in the pleadings

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, "Jackson Kabingu Gichohi v Attorney General [2020] KEELRC 1765 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1765/eng@2020-01-31

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