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ELRCDismissedNot stated in the judgment· [2021] KEELRC 1630 (KLR)

Elias Kibathi & another v Attorney General [2021] KEELRC 1630 (KLR)

Employment and Labour Relations Court
7 June 2021
MNMathews N. Nduma
2,130 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 upheld the three-year deadline for suing over employment disputes, and warned that constitutional petitions must clearly state which rights were violated.

What this practically means

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Executive summary

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The two petitioners filed a petition challenging the constitutionality of Section 90 of the Employment Act, 2007, seeking a declaration that it is unconstitutional, illegal and void in its entirety or alternatively to the extent that it denies litigants the right to seek extension of time and creates a shorter limitation period for contracts of service (three years) than for other contracts (six years under Section 4(1) of the Limitation of Actions Act). The respondent raised a preliminary objection contending that only the High Court under Article 165(3)(d)(i) could determine whether a law is inconsistent with the Constitution. The Court rejected the objection, holding that under Article 162(2)(a) and Section 12 of the Employment and Labour Relations Court Act it has exclusive original jurisdiction over employment and labour relations matters, including interpretation and application of the Constitution in such matters, relying on USIU v Attorney General and Mugendi v Kenyatta University. On the merits, the Court found the petition lacked precision since it never specified which Articles of the Constitution Section 90 violated, citing the Mugendi principle that pleadings must clearly set out the cause of action. Substantively, the Court held that Parliament lawfully intended a shorter limitation period for employment disputes, and that Section 90 does not expressly bar extension of time under Part III of the Limitation of Actions Act. The petition was dismissed in its entirety with no order as to costs, judgment being delivered online under COVID-19 directives.

Key legal issues

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01

Jurisdiction of the ELRC over constitutional challenges to the Employment Act

Holding

The Court has jurisdiction; the preliminary objection is dismissed

Reasoning

Article 162(2)(a) authorised establishment of courts of equal status with the High Court for employment and labour disputes, and Section 12 of the ELRC Act grants exclusive original jurisdiction. Article 165(5)(b) ousts the High Court's jurisdiction over matters within Article 162(2) courts. Following USIU and Mugendi, such courts may interpret and apply the Constitution in employment-related matters.

p. 2
02

Adequacy of pleadings in a constitutional petition

Holding

The petition failed for lack of precision as it did not identify the constitutional provisions violated

Reasoning

Neither the facts nor the prayers specified which Articles of the Constitution Section 90 offended. Relying on Mugendi, pleadings must clearly and specifically set out facts. The Court could only guess that Article 48 (access to justice) was intended, but this did not emerge from the pleadings.

p. 3
03

Whether the three-year limitation period under Section 90 violates the Constitution

Holding

No; Parliament intended a shorter limitation period for employment disputes

Reasoning

Parliament derives legislative authority from Article 94(1). Stakeholders in employment relations intended a shorter period; the Employment Act is later legislation and its intent was definitive. Any limitation must be reasonable and justifiable under Article 24, but the petitioners demonstrated no illegality or unconstitutionality.

p. 4
04

Whether Section 90 denies extension of time unconstitutionally

Holding

No; Section 90 does not expressly bar enlargement of time under Part III of the Limitation of Actions Act

Reasoning

Section 90 does not refer to Part III of the Limitation of Actions Act and does not state expressly that time may not be enlarged on sound grounds. The petitioners therefore established no unconstitutionality, illegality or unlawfulness in this regard.

p. 4

Legal principles established

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  • The Employment and Labour Relations Court has exclusive original jurisdiction, including to interpret and apply the Constitution, over matters relating to employment and labour relations
  • A constitutional petition must specify with clarity and precision the specific Articles of the Constitution said to be violated
  • Parliament may prescribe a shorter limitation period for employment contracts provided the legislation does not contradict a specific Article of the Constitution

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.The petition is dismissed in its entirety with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 165(3)(d)(i) and 165(5)
  • Constitution of Kenya, 2010Article 24(1) and (2)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 94(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Employment Act, 2007Section 90
  • Employment and Labour Relations Court Act, 2011 (as amended in 2014)Section 12
  • Limitation of Actions Act, Cap. 22Section 4(1) and Part III
  • Civil Procedure Act (Chapter 21)Section 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • United States International University (USIU) –vs- Attorney General
    [2012] eKLR
  • Mugendi –vs- Kenyatta University – Civil Appeal No. 6 of 2012
    [2013] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Elias Kibathi & another v Attorney General [2021] KEELRC 1630 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1630/eng@2021-06-07

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