Bwonda & 11 Others v Lake Basin Development Authority (Petition E050 of 2021) [2022] KEELRC 1523 (KLR)
The bottom line
#Kenya's Employment Court dismissed a pension petition because it was filed years too late, repeated an already-decided case, and bypassed the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Applicability of Civil Procedure Rules to constitutional petitions and effect of absence of written authority
The Rules apply to constitutional petitions, but the absence of written authority under Order 1 Rule 13 is not fatal given Article 159(2)(d)
The court held that the Civil Procedure Rules and Act apply to constitutional petitions, following Kitty Njiru, Meme vs Republic and Karl Wehner Claasen. However, Article 159(2)(d) requires justice without undue regard to procedural technicalities, and Rule 5(a) of the Mutunga Rules requires just determination. The absence of the 1st Petitioner's written authority from co-petitioners was therefore not fatal, and this ground of the objection failed.
Whether the petition met the Anarita Karimi Njeru precision threshold / doctrine of constitutional avoidance
The petition did not disclose a constitutional cause of action; employment issues should be resolved under the Employment Act
The only provision invoked was Article 40 concerning court awards as property. The court found the issues were employment matters resolvable under the Employment Act. Relying on the New Clicks decision and Communications Commission of Kenya vs Royal Media Services on constitutional avoidance, the court held a litigant should not bypass legislation enacted to give effect to constitutional rights. The objection succeeded on this ground.
Res judicata
The petition was res judicata, the same issues having been heard and finally determined in the former suit
The Petitioners' own pleadings acknowledged the judgments of Justices Warsame, Nambuye and Chemitei in Kisumu HCCC No. 156 of 2004 and an identical prayer in earlier suits. Applying the Accredo Ltd criteria - same issue directly in issue, same parties, same title, heard and finally determined - the court found the petition res judicata.
Limitation of actions
The petition was statute-barred under Section 90 of the Employment Act, 2007 (three years from termination)
The claim concerned retrenchment and terminal benefits arising from an employment contract, governed by Section 90 of the Employment Act, 2007, which imposes a three-year limitation, not six or twelve years as submitted. Time runs from termination. The Petitioners were retrenched between 2002 and 2007, and the relevant decision was delivered on 16th May 2012; the petition, filed 13th August 2021, was grossly out of time.
Legal principles established
#- The Civil Procedure Rules and Civil Procedure Act are applicable to constitutional petitions
- Where legislation gives effect to a constitutional right, a litigant should found the cause of action on that legislation, not directly on the Constitution (doctrine of avoidance)
- In employment matters, limitation under Section 90 of the Employment Act, 2007 is three years and time runs from the date of termination
Court orders
#- 1.The Respondent's Preliminary Objection dated 11th February 2022 is upheld
- 2.The petition is dismissed with no orders as to costs
- Jurisdiction invoked
- Original constitutional petition jurisdiction under Article 22 of the Constitution; court also noted supervisory jurisdiction under Article 165(6) was invoked by the Petitioners
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bwonda & 11 Others v Lake Basin Development Authority (Petition E050 of 2021) [2022] KEELRC 1523 (KLR)", Case Analysis (2022). Petition dated 13th August 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1523/eng@2022-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.