Bernard Malesi v TSC & another [2022] KEELRC 616 (KLR)
The bottom line
#Kenya's Employment Court struck out a teacher's constitutional petition filed nearly six years after dismissal, holding employment disputes cannot bypass the law's three-year time limit.
What this practically means
#Executive summary
#Key legal issues
#Limitation under Section 90 of the Employment Act applies to constitutional petitions founded on employment contracts
The petition, founded on an employment contract, was time barred under Section 90 of the Employment Act and the court had no jurisdiction to grant the orders sought
The dismissal occurred on 6th September 2012 and the petition was filed on 9th July 2021, nearly six years later. The court found the substantive dispute contractual and governed by the Employment Act, whose remedies (Sections 41, 43, 45, 49) cover fair hearing and unfair dismissal claims. Framing the claim as a constitutional petition to evade limitation was an abuse of process.
Whether the TSC disciplinary process and impugned regulations were unconstitutional
Nothing unconstitutional was found in the disciplinary process, the composition of the disciplinary panel or the review powers under regulation 156(2)
The court held the employer is entitled under the Employment Act to investigate and conduct disciplinary proceedings on reasons it genuinely believes to exist, per Section 43(2). Fair hearing is comprehensively covered under Sections 41, 43 and 45 of the Employment Act, and the review powers in regulation 156(2) were found sound in law.
Jurisdiction of the ELRC over constitutional questions in employment disputes
The court has jurisdiction under Article 162(2)(a) to determine constitutional questions in employment and labour disputes; the real objection was limitation, not jurisdiction
The court found it uncontested that it could determine constitutional questions in employment disputes. It nonetheless located the true issue as limitation under Section 90, which goes to jurisdiction to grant the orders sought because the claim was founded on contract.
Legal principles established
#- Where legislation (the Employment Act) gives effect to constitutional rights in employment matters, a litigant cannot bypass the statute and rely directly on the Constitution to evade statutory limitation.
Court orders
#- 1.The preliminary objection succeeds
- 2.The Petition is struck out for being an abuse of court process and for the claim founded on employment contract being time barred
- 3.Costs to the 1st Respondent
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Malesi v TSC & another [2022] KEELRC 616 (KLR)", Case Analysis (2022). Petition dated 9th July 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/616/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.