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ELRCStruck OutNot stated in the excerpt· [2021] KEELRC 143 (KLR)

Paul K. Langat v Kenya Defence Forces 9th Battalion & another [2021] KEELRC 143 (KLR)

Employment and Labour Relations Court
16 December 2021
1,477 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A former KDF officer's suit was struck out because it was filed late and relied on the Employment Act, which does not cover Defence Forces.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling at Nakuru, delivered by Onesmus N Makau J on 16 December 2021, determined a notice of preliminary objection dated 25 October 2019 in which the respondents, the Kenya Defence Forces, sought striking out of a former officer's claim. The respondents argued that the suit, founded on contract of service, was time barred under section 3(2) of the Public Authorities Limitation Act, the cause of action having arisen on 23 January 2013 (or 5 February 2013 as pleaded) while the suit was filed on 22 November 2016. They further contended that the Employment Act does not apply to KDF by virtue of section 3(2)(a). The claimant opposed, arguing that time stopped running when he sought review of his dismissal under section 159(3) of the KDF Act, and that having left KDF, the Employment Act exclusion no longer applied. Framing three issues - whether the objection raised pure points of law, whether the suit was time barred, and whether it offended section 3(2) of the Employment Act - the court applied the Mukisa Biscuits test, found the objection raised pure points of law, sustained the limitation bar, held that lapse of the limitation period extinguished the court's jurisdiction, and held that the Employment Act does not apply to KDF, a former officer being confined to the KDF Act, the Constitution, the Fair Administrative Actions Act or other law. The preliminary objection was sustained, the suit struck out, with each party bearing their own costs.

Key legal issues

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01

Whether the preliminary objection raises pure points of law

Holding

The objection raises pure points of law requiring no evidence and capable of ending the suit.

Reasoning

Applying the Mukisa Biscuits test, the court found the grounds - limitation under the Public Authorities Limitation Act and non-applicability of the Employment Act to KDF - required no ascertainment of facts and no exercise of judicial discretion, hence properly raised as a preliminary objection.

p. 2
02

Whether the suit is time barred under section 3(2) of the Public Authorities Limitation Act

Holding

The suit, founded on contract of service and filed about 10 months after the three-year limitation period expired, is time barred and the court lacks jurisdiction.

Reasoning

The cause of action arose on 23/1/2013 or 5/2/2013 and the suit was filed on 22/11/2016, beyond the three-year period. The claimant's argument that time stopped running upon his application for review under section 159(3) of the KDF Act did not persuade the court, which applied the statutory bar and relied on the Anaclet Kalia Musau and Razo Limited authorities.

p. 2
03

Whether the suit offends section 3(2)(a) of the Employment Act

Holding

The Employment Act does not apply to the Kenya Defence Forces, so the suit cannot be grounded on it.

Reasoning

Section 3(2)(a) of the Employment Act expressly excludes the KDF from the Act's application. The dispute being between a former KDF officer and KDF, the claimant could only invoke the court's jurisdiction under the KDF Act, the Constitution, the Fair Administrative Actions Act or other law, not the Employment Act.

p. 3

Legal principles established

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  • A suit founded on contract against the Government or a local authority cannot be brought after three years from the date the cause of action accrued
  • Lapse of the limitation period extinguishes the court's jurisdiction over the cause of action
  • The Employment Act does not apply to the Kenya Defence Forces
  • A former KDF officer may invoke the court's jurisdiction under the KDF Act, Constitution, Fair Administrative Actions Act or other law, but not under the Employment Act

Court orders

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  1. 1.The preliminary objection dated 25/10/2019 is sustained
  2. 2.The suit is struck out
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Public Authorities Limitation Actsection 3(1), section 3(2)
  • Employment Actsection 3(2)(a), sections 45 and 87(2)
  • Kenya Defence Forces Actsection 159(3)
  • Labour Institutions Actsection 12
  • Labour Relations Actsections 73
  • Fair Administrative Actions Actnot specified
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (5)

  • Anaclet Kalia Musau –vs Attorney General & 2 others
    [2020] eKLR
  • Samuel Okoth Kamwere –vs- Ministry of Labour & Human Resource development & Another
    {2008} eKLR
  • Samson Tonui –v- Tinderet Tea Estate
    Eldoret ELRC No. 231 of 2018
  • Mukisa Biscuits –vs Westend Distributor Ltd
    [1969] EA 696
  • Bakery Confectionery food Manufacturing and allied workers union –vs Razo Limited
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under section 12 of the Labour Institutions Act (invoked in the Statement of Claim); ruling on preliminary objection under the Employment and Labour Relations Court Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Paul K. Langat v Kenya Defence Forces 9th Battalion & another [2021] KEELRC 143 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/143/eng@2021-12-16

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