Isaac Newton Kinity v Attorney General [2020] KEELRC 1772 (KLR)
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
#Key legal issues
#Whether section 90 of the Employment Act bars the claimant's terminal dues claims
The terminal dues claims going back to 1998 are time barred
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.
Whether the constitutional rights claims survive the limitation objection
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
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.
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.The respondent's notice of preliminary objection is upheld and the claims are found to be time barred
- 2.No order as to costs
- 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.