Peter Ambogo Abuso v Nairobi City County [Formerly City Council of Nairobi] [2021] KEELRC 28 (KLR)
The bottom line
#Kenya's Employment Court struck out a Ksh.11 million salary claim because it was filed 14 years late, confirming the three-year limit cannot be avoided by filing a constitutional petition.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioner's claim is statute-barred under section 90 of the Employment Act, which imposes a three-year limitation period
- 2.Whether the court has power to extend the limitation period to allow the claim filed out of time
- 3.Whether the court has jurisdiction to hear the petition
- 4.Whether the petition, being an ordinary employer-employee dispute, should have been brought as a Memorandum of Claim under the Employment and Labour Relations Court (Procedure) Rules, 2016 rather than a constitutional petition
- 5.Whether the Employment Act applies to county government employees / state officers
Key legal issues
#Limitation under section 90 of the Employment Act
The claim, arising from summary dismissal on 14th December 2004 and filed on 26th October 2018, is time-barred; section 90 is mandatory and the court cannot extend time.
Section 90 requires employment disputes to be filed within three years of the cause of action, in mandatory terms. The dismissal occurred in December 2004 and no suit was filed until October 2018, far beyond the limitation period. The court held that the constitutional petition format cannot cure non-compliance with a statutory limitation bar, citing Thuita Mwangi.
Whether a constitutional petition may substitute the statutory employment dispute procedure
No; where the Employment Act provides adequate remedies, a litigant must use the prescribed procedure and cannot found the cause of action directly on the Constitution without challenging the legislation.
Relying on Speaker of the National Assembly v Karume and Sumayya Athmani Hassan, the court held that Article 41 rights are enacted in the Employment Act and Labour Relations Act, which provide adequate remedy and enforcement mechanisms. A petition relying directly on the Constitution to enforce contractual employment rights, without alleging the statutory remedies are inadequate, is improper and the court's jurisdiction cannot be invoked that way.
Applicability of the Employment Act to county government employees
The County Government Act, 2012 regulates county employees through County Public Service Boards, but these procedures did not apply to the petitioner, dismissed in 2004, who was governed by the repealed Employment Act.
The respondent argued the Employment Act does not apply to state officers. The court noted the County Government Act, 2012 establishes County Public Service Boards with disciplinary mandate, with appeals to the Public Service Commission under Article 234. However, since the petitioner's dismissal predated that framework (December 2004), those requirements did not apply to him; he ought to have sued under the repealed Employment Act.
Legal principles established
#- Section 90 of the Employment Act is mandatory: claims arising out of employment contracts must be instituted within three years of the act complained of, and this limitation cannot be circumvented by framing the claim as a constitutional petition.
- Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed; a litigant cannot found a cause of action directly on the Constitution where legislation provides an adequate remedy.
- Without jurisdiction, a court must down its tools and cannot entertain the matter.
Court orders
#- 1.The respondent's Notice of Preliminary Objection dated 27th November 2019 is allowed
- 2.The petitioner's petition is struck out
- 3.Costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution (ELRC jurisdiction), as invoked by the petitioner; contested by the respondent on limitation grounds under section 90 of the Employment Act
Relief refused
#The petitioner's prayer for a declaration that the stoppage, withholding and refusal to pay salary for 12 years and failure to deploy him was unconstitutional, and for a mandatory injunction to compel deployment and payment of Ksh.11,025,630
The claim was filed out of time contrary to section 90 of the Employment Act and circumvented the statutory procedure; the constitutional petition route was improperly invoked
Costs
Costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The objections by the respondent are found with merit and hereby allowed. The petitioner is hereby struck out. Costs to the respondent.
The provisions of section 90 are couched in mandatory terms.
where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question
On this basis, the court is without jurisdiction and must down its tools.
Issues in the judgment
#The judge's name appears with a possible typographical error at the signature block: 'M. MBAR? JUDGE' (apparently M. Mbaru).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Ambogo Abuso v Nairobi City County [Formerly City Council of Nairobi] [2021] KEELRC 28 (KLR)", Case Analysis (2021). Petition (ELRC, Nairobi) - number not stated in ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/28/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.