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ELRCDismissedNot stated in the judgment text provided· [2023] KEELRC 1486 (KLR)

Yamba v Kenya Revenue Authority (Cause E097 of 2021) [2023] KEELRC 1486 (KLR)

Employment and Labour Relations Court
16 June 2023
2,018 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 claim filed 14 years late, confirming the three-year time limit under section 90 of the Employment Act cannot be sidestepped by framing a claim as a constitutional rights violation.

What this practically means

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Executive summary

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The claimant, a former Assistant Revenue Officer at Isebania Customs Station, filed a claim on 8 February 2021 alleging violation of his rights under Article 47 of the Constitution, contending he was retired following proceedings conducted in gross violation of his rights. He later filed a Notice of Motion dated 6 March 2023 seeking enlargement of time for serving summons and filing suit under the Employment Act, citing prolonged illness including prostate cancer. The respondent, Kenya Revenue Authority, filed a preliminary objection dated 23 March 2023 asserting the court lacked jurisdiction because the suit was statutorily time barred under section 90 of the Employment Act and section 20A of the Kenya Revenue Authority Act, the suit having been brought some 14 years after the events complained of. The claimant relied on section 22 of the Limitation of Actions Act (disability) and argued the claim was founded on the constitutional right to fair hearing which could not be limited by statute. The court, applying Anderson Nganga Maina v NCPB, Maxwel Sifuna v TSC, and Petition No. 250 of 2019 (citing Jane Angila Obando v TSC), held there is no basis or discretion to enlarge time under section 90, and that the constitutional framing cannot defeat the statutory limitation bar. The preliminary objection was upheld, the claim was dismissed for lack of jurisdiction, and each party was ordered to bear its own costs of the preliminary objection.

Key legal issues

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01

Whether the court can extend time for filing an employment claim outside the period prescribed by section 90 of the Employment Act

Holding

No - there is no basis or discretion to enlarge time; the claim is time barred and the court lacks jurisdiction

Reasoning

The court accepted that the suit was filed outside the three-year limitation period in section 90 of the Employment Act. Relying on prior decisions including Anderson Nganga Maina v National Cereals and Produce Board and the decision in Petition No. 250 of 2019, the court found that commonplace employment claims must follow the substantive and procedural rules of the Employment Act and that invoking constitutional guarantees (Article 47 fair administrative action) cannot circumvent the limitation bar. The court sympathised with the claimant's illness but held its hands were tied.

p. 3
02

Whether a claim framed as a constitutional rights violation (Article 47) escapes the Employment Act limitation regime

Holding

No - the claim concerned commonplace employment issues and the constitutional framing cannot cure a statutory time bar

Reasoning

The claimant argued his claim derived from the constitutional right to fair hearing and could not be limited by an Act, and that section 22 of the Limitation of Actions Act (disability) saved his claim. The court, citing Jane Angila Obando v TSC, held that a constitutional petition cannot be used to avoid section 90 of the Employment Act, and that the objections regarding the suit being time barred cannot be cured through a constitutional petition.

p. 3

Legal principles established

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  • Section 90 of the Employment Act prescribes a three-year limitation period for employment claims with no scope for enlargement, and a limitation bar cannot be defeated by invoking alleged constitutional violations
  • Limitation periods are not concerned with the merits of a claim

Court orders

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  1. 1.The preliminary objection dated March 23, 2023 is merited and is granted
  2. 2.The claim is dismissed for lack of jurisdiction
  3. 3.Each party will meet their costs of the preliminary objection

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment and Labour Relations Court Actsection 12
  • Employment Act, 2007section 90
  • Kenya Revenue Authority Act, 1995section 20A
  • Limitation of Actions Act (cap. 22)sections 4(1), 22, 27, 27(1), 28
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (11)

  • Owners of the Motor Vessel 'Lilian 'S' Caltex Oil (Kenya) Ltd
  • Willis Onditi Odhiambo versus Gateway Insurance Company Ltd
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
  • Devecon v Samani Ltd
  • Josephat Ndirangu v Hankel Chemicals (EA) Ltd
  • Anderson Nganga Maina and 2 others v National Cereals and Produce Board, Petition E5629 of 2020
  • Maxwel Sifuna v Teachers Service Commission
    2022 eKLR
  • Petition Number 250 of 2019 versus the Hon Attorney General, Public Service Commission and Joseph Kinyua Ngunjiri
  • Jane Angila Obando v TSC & 2 others, Petition No.4 of 2020
  • Oadi Odhiambo v Gateway Insurance Co Ltd
  • Hilton v Sultan S Team Laundry
Jurisdiction invoked
Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Yamba v Kenya Revenue Authority (Cause E097 of 2021) [2023] KEELRC 1486 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1486/eng@2023-06-16

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