Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 1772 (KLR)

Isaac Newton Kinity v Attorney General [2020] KEELRC 1772 (KLR)

Employment and Labour Relations Court
23 January 2020
1,460 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 confirmed that work-related claims must be filed within three years, and even constitutional rights claims fail if filed after unexplained, decades-long delay.

What this practically means

#

Executive summary

#
The claimant filed a Memorandum of Claim on 9th August 2018 alleging unfair and unlawful termination of employment, entitlement to compensation for the years 1972 to 1997, benefits until 2014, pension, terminal dues, and damages for violation of constitutional rights. He alleged that because of his union activities in reviving the Kenya Civil Servants Union in 1992, he was trailed, persecuted and harassed by police, forcing him into exile on 25th December 1998. The respondent, the Attorney General, raised a preliminary objection that the claims were time barred under section 90 of the Employment Act, 2007, which requires employment claims to be filed within 3 years of the cause of action, or within 12 months for continuing injuries, and that the respondent had been unable to trace the claimant's file to file a defence. The claimant countered that section 90 depends on the circumstances of each case, that his case involved fundamental rights violations, and cited Ambassador Samson Chemai Kipkech v AG & others. The court held that section 90 is in mandatory terms and that the terminal dues claims going back to 1998 were time barred. On the constitutional claims, it applied the line of authority holding there is no limitation period for fundamental rights petitions, but found the claimant had not explained the delay in filing, particularly under the 2010 Constitution. It also noted that the Chemai decision had been overturned in its entirety by the Court of Appeal in Richard Erskine Leakey v Samson Kipkoech Chemai. The preliminary objection was allowed, the claims were held time barred, and since the respondent was the Attorney General and not the line Ministry, no order as to costs was made.

Key legal issues

#
01

Whether section 90 of the Employment Act bars the claimant's terminal dues claims

Holding

The terminal dues claims going back to 1998 are time barred

Reasoning

Section 90 is couched in mandatory terms and requires employment and labour relations claims to be lodged within 3 years of the cause of action arising, or within 12 months for continuing injuries. The claims relate to employment between 1972 and 1997/1998, yet the Memorandum of Claim was filed on 9th August 2018, more than 18 years later. The respondent had also been unable to trace the claimant's file to file a defence.

p. 2
02

Whether the constitutional rights claims survive the limitation objection

Holding

The constitutional claims were not defeated by limitation per se, but by inordinate, unexplained delay; the Chemai authority relied on by the claimant had been overturned on appeal

Reasoning

While courts have consistently held there is no limitation period for petitions enforcing fundamental rights, the claimant gave only a chronology of going into exile in December 1998, without clarifying the date of return or why he failed to file under the 2010 constitutional dispensation. The court also noted that the Chemai decision relied on by the claimant had been overturned in its entirety by the Court of Appeal in Richard Erskine Leakey v Samson Kipkoech Chemai.

p. 2

Legal principles established

#
  • Section 90 of the Employment Act, 2007 is in mandatory terms: employment and labour relations claims must be lodged within 3 years from the date the cause of action arose, and within 12 months where there is a continuing injury
  • Constitutional petitions alleging violation of fundamental rights attract no limitation period, but the court may refuse relief where there is inordinate and unexplained delay
  • The rationale of limitation enactments is to prevent stale claims and protect defendants who have lost evidence, not to extinguish claims

Court orders

#
  1. 1.The respondent's notice of preliminary objection is upheld and the claims are found to be time barred
  2. 2.No order as to costs

Authorities

#

Legislation

  • Employment Act, 2007section 90
  • Employment Act, 2007section 44
  • Constitution of Kenya, 2010Article 36
  • Repealed Constitution of KenyaArticle 80
  • Constitution of Kenya (repealed)section 84

Cases cited (10)

  • Ambassador Samson Chemai Kipkech versus AG & others [2017] eKLR
    [2017] eKLR
  • Joan Akinyi Kabasellah and 2 Others versus Attorney General, Petition No 41 of 2014
    Petition No 41 of 2014
  • Dominic Arony Amolo vs Attorney General, Nairobi High Court Misc. Civil Case No 1184 of 2003 (OS) [2010] eKLR
    [2010] eKLR
  • Otieno Mak'Onyango vs Attorney General and Another, Nairobi HCCC NO 845 of 2003 (unreported)
  • James Kanyiita vs Attorney General and Another, Nairobi Petition No. 180 of 2011
    Petition No. 180 of 2011
  • Ochieng' Kenneth K'Ogutu versus Kenyatta University and 2 others, High Court Petition No. 306 of 2012
    Petition No. 306 of 2012
  • Rawal versus Rawal [1990] KLR 275
    [1990] KLR 275
  • Richard Erskine Leakey & 2 others versus Samson Kipkoech Chemai [2019] eKLR
    [2019] eKLR
  • Njuguna Githiru versus Attorney General [2016] eKLR
    [2016] eKLR
  • Beatrice Kahai Adagala versus Postal Corporation of Kenya [2015] eKLR
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007, particularly section 90

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.

Cite this brief

#

Cite this brief

Caselaw, "Isaac Newton Kinity v Attorney General [2020] KEELRC 1772 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1772/eng@2020-01-23

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