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ELRCDismissedNot stated in the judgment extract· [2022] KEELRC 87 (KLR)

Simeon A. Oloo & 19 others v Lake Basin Development Authority (Petition E049 of 2021) [2022] KEELRC 87 (KLR)

Employment and Labour Relations Court
16 June 2022
2,758 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 dismissed a retrenchment benefits petition because employment disputes belong under the Employment Act, and claims filed after three years are time-barred.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 11th February 2022 against the Petitioners' constitutional petition concerning terminal benefits following retrenchment between 2002 and 2007, on four grounds: want of written authority for the 1st Petitioner under Order 1 Rule 13 of the Civil Procedure Rules; failure to meet the precision threshold in Anarita Karimi Njeru; res judicata by reason of earlier suits including Kisumu HCCC No. 156 of 2004; and limitation. The Petitioners relied on Articles 22(1) and 22(6) on locus and argued that limitation ran for twelve years from remedy of the transgression. The court held that the Civil Procedure Rules and the Civil Procedure Act apply to constitutional petitions, following Kitty Njiru, Meme vs Republic and Karl Wehner Claasen, but that under Article 159(2)(d) the absence of written authority was not fatal, so that ground failed. Applying the principle of constitutional avoidance drawn from New Clicks and Communications Commission of Kenya vs Royal Media Services, the court found the petition disclosed no constitutional cause of action, as the issues were employment matters governed by the Employment Act. On the Petitioners' own pleadings, the petition was found res judicata. It was further held statute-barred under Section 90 of the Employment Act, 2007, which prescribes a three-year limitation period for employment claims running from termination. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Applicability of Civil Procedure Rules to constitutional petitions and effect of missing written authority

Holding

The Civil Procedure Rules apply to constitutional petitions, but under Article 159(2)(d) the absence of written authority is not fatal; this ground of the objection failed.

Reasoning

The court accepted authority holding that the Civil Procedure Rules apply to constitutional petitions, including Meme vs Republic and Kitty Njiru. However, it balanced this against Article 159(2)(d) on procedural technicalities and Rule 5(a) of the Mutunga Rules on the overriding objective, holding that the Rules serve to bridge gaps and pursue justice rather than defeat suits.

p. 4
02

Whether the petition met the Anarita Karimi Njeru precision threshold

Holding

The petition did not disclose a constitutional cause of action; the principle of constitutional avoidance applied because the claims were employment matters governed by the Employment Act.

Reasoning

The only constitutional provision invoked was Article 40, in respect of awards in earlier suits. The court found all issues were employment issues resolvable under the Employment Act, and relied on the New Clicks and Communications Commission of Kenya decisions on constitutional avoidance, holding legislation enacted to give effect to constitutional rights ought not to be bypassed.

p. 4
03

Res judicata

Holding

The petition was res judicata: the same parties litigated the same issues under the same title and these were finally determined in the former suit.

Reasoning

The Petitioners' own pleadings admitted that the judgments in Kisumu HCCC No. 156 of 2004 and the awards sought were the same as those prayed for in their earlier original plaints. Applying the Accredo Ltd vs Stefano test, the court found the former suit was between the same parties, on the same subject matter, and heard and finally determined.

p. 5
04

Limitation of time

Holding

The petition was statute-barred under Section 90 of the Employment Act, 2007, the three-year period having expired whether counted from retrenchment or from the 2012 court decision.

Reasoning

The Petitioners were retrenched between 2002 and 2007; the decision on the retirement package was delivered on 16th May, 2012; the petition was filed on 13th August, 2021. Either way the claim was far outside the three-year limitation period for employment contracts, and the argument that time runs from remedy of the transgression was rejected.

p. 6

Legal principles established

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  • The Civil Procedure Rules and the Civil Procedure Act are applicable to Constitutional petitions
  • Under Article 159(2)(d), absence of written authority under Order 1 Rule 13 is not fatal to a constitutional petition
  • The principle of constitutional avoidance bars founding a cause of action directly on the Constitution where legislation such as the Employment Act provides remedies
  • Time in employment claims starts running on the date of termination and runs for three years under Section 90 of the Employment Act, 2007

Court orders

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  1. 1.The Respondent's Preliminary Objection dated 11th February, 2022 is upheld
  2. 2.The petition is dismissed with no orders as to costs
Jurisdiction invoked
Original constitutional petition jurisdiction under Article 22 of the Constitution, with reference to Article 165 supervisory jurisdiction argued by the Petitioners

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, "Simeon A. Oloo & 19 others v Lake Basin Development Authority (Petition E049 of 2021) [2022] KEELRC 87 (KLR)", Case Analysis (2022). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/87/eng@2022-06-16

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