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ELRCDismissedPetition filed 27th November, 2020 (number not stated in judgment)· [2021] KEELRC 874 (KLR)

Lucy Chepkemoi v Sotik Tea Company Limited [2021] KEELRC 874 (KLR)

Employment and Labour Relations Court
30 September 2021
1,368 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that disability discrimination claims can be filed as constitutional petitions without the three-year Employment Act time limit.

What this practically means

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Executive summary

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The Petitioner, a former secretary of the Respondent employed in 2006, lost her eyesight while working and was dismissed from employment on medical grounds in 2017 after registering as a person living with disability. She filed a constitutional petition on 27th November 2020 alleging discrimination and violation of her rights on account of her disability. The Respondent filed a preliminary objection on 16th March 2021 contending that the ELRC lacked jurisdiction because the claim was statute-barred under section 90 of the Employment Act, the three-year limitation period having lapsed on 19th May 2020. The Respondent argued the petition was a device to evade limitation, citing G4S Security Service, Denis Sang and Andrew Naina Githinji. The Petitioner countered that there is no limitation period for constitutional petitions alleging violation of fundamental rights, citing Wachira Waheire and related authorities, and attributed delay to the Covid-19 outbreak and court closures. Holding the preliminary objection necessary to decide first since it touched on jurisdiction, the court, relying on Joan Akinyi Kaba Sella and the line of cases therein, held that no limitation applies to constitutional petitions alleging violation of fundamental rights, and that the delay from 2017 to 2020 was not inordinate in a constitutional petition. The court dismissed the preliminary objection, ordered the petition to proceed on merit before the Judge in Kericho, and made no order as to costs, reserving costs to the petition.

Key legal issues

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01

Jurisdiction of the ELRC over a constitutional petition arising from employment

Holding

The court has jurisdiction over the petition since it arises from an employer-employee relationship, irrespective of its framing as a petition rather than a cause

Reasoning

The court noted that the petitioner alleged infringement of her constitutional rights by her employers. Relying on Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Act, it held that jurisdiction extends to any matter arising out of an employer-employee relationship, whether pleaded as a cause or a petition.

p. 2
02

Whether section 90 of the Employment Act limits the time for filing a constitutional petition on employment rights

Holding

There is no limitation period for constitutional petitions alleging violation of fundamental rights; section 90 of the Employment Act does not bar such a petition

Reasoning

Adopting the reasoning in Joan Akinyi Kaba Sella, the court held that limitation statutes do not apply to constitutional petitions enforcing fundamental rights. The delay between the 2017 dismissal and the 2020 filing was not inordinate in the circumstances of a constitutional petition, so the preliminary objection on limitation failed.

p. 2
03

Whether the preliminary objection should be determined first

Holding

Yes; the preliminary objection touching on jurisdiction was properly determined before the hearing of the petition

Reasoning

The court found it necessary to decide the preliminary objection first since it challenged the court's jurisdiction, and heard it by way of written submissions from both parties before ruling on it.

p. 1

Legal principles established

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  • Courts have consistently held that there is no limitation period with respect to constitutional petitions alleging violation of fundamental rights, though the court may consider inordinate delay when deciding whether to grant relief
  • The ELRC has jurisdiction over any matter arising out of an employer-employee relationship, including constitutional petitions alleging infringement of rights in the course of employment

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.The petition to proceed on merit before the Judge in Kericho
  3. 3.Costs in the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Section 84 (as referenced)
  • Employment Act, 2007Section 90
  • Employment and Labour Relations ActSection 12

Cases cited (11)

  • Kenya Pharmaceuticals Association and another v Nairobi City County and 46 other county governments and another
    [2017] eKLR
  • Attorney General and another v Andrew Naina Githinji and another
    [2016] eKLR
  • G4S Security Service (K) Limited v Joseph Kamau and 468 others
    [2018] eKLR
  • Denis Sang v Kenya Commercial Bank Limited
    [2016] eKLR
  • Chimweli Jangaa Mangale & 3 others v Hamisis Mohamed Mwawasaa & 15 others
    [2016] eKLR
  • Wachira Waheire v Attorney General (OS)
    [2010] EKLR
  • James Kanyiiya Nderitu v Attorney General and another, Nairobi Petition No. 180 of 2010 (UR)
  • Joan Akinyi Kaba Sella and 2 others v AG
    Pet No. 41 of 2014
  • Dominic Arony Amollo v AG
    Nairobi High Court Misc. Civil Cause No. 1184 of 2013 (OS) 2010 eKLR
  • Otieno Mak Anyango v AG and another
    NRB HCCC No. 845 of 2003 (unreported)
  • James Kanyiita v AG & Another
    NRB Petition No. 180 of 2011
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010 and Section 12 of the Employment and Labour Relations Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Lucy Chepkemoi v Sotik Tea Company Limited [2021] KEELRC 874 (KLR)", Case Analysis (2021). Petition filed 27th November, 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/874/eng@2021-09-30

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