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ELRCOtherNot stated in the judgment· [2023] KEELRC 2092 (KLR)

Ndueyira v Inspector General of Police & 3 others (Employment and Labour Relations Appeal E038 of 2020) [2023] KEELRC 2092 (KLR)

Employment and Labour Relations Court
18 May 2023
OKOcharo Kebira
3,435 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court confirmed that statutory time limits cannot stop you from filing a constitutional rights petition.

What this practically means

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Executive summary

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The 1st, 2nd and 4th respondents, and separately the 3rd respondent, raised preliminary objections seeking dismissal of the petitioner's constitutional petition on grounds of limitation: section 3 of the Public Authorities Limitations of Actions Act, section 4(1) of the Limitation of Actions Act, section 90 of the Employment Act, section 12(3) of the Employment and Labour Relations Court Act, and abuse of process. They argued the dispute was an ordinary employment claim (dismissal communicated on February 4, 2014) camouflaged as a constitutional petition to evade limitation, citing Benjamin Wachira Ndiithi and Daniel Kago Gachanja. The petitioner countered that the Employment Act does not apply to police officers, that Articles 22 and 258 of the Constitution prescribe no limitation period for enforcement of rights, and relied on Wachira Weheire and Dominic Arony Amolo, further arguing that the 3rd respondent's failure to communicate a 'final decision' on his appeal constituted a continuing injury. The court framed two issues: whether statutes can bar adjudication on the Bill of Rights, and whether the petition raises properly justiciable constitutional issues. Holding that the Constitution and the Mutunga Rules prescribe no limitation for Article 22 and 258 proceedings, and that statutory limitations cannot be implied into the Constitution, the court found the limitation provisions inconsistent with the Constitution to the extent they barred such claims. It further found the reliefs depended on the constitutional issues, defeating constitutional avoidance. The preliminary objection was dismissed. No order as to costs appears in the judgment.

Key legal issues

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01

Whether statutory limitation statutes bar constitutional petitions under Articles 22 and 258

Holding

They do not; statutory limitation provisions cannot be read into the Constitution and are inconsistent with it to the extent that they limit such proceedings.

Reasoning

Neither the Constitution nor the Mutunga Rules prescribe a limitation period for enforcement proceedings under Articles 22 and 258. Had Kenyans intended a limitation, it would have been expressed in the Constitution or through Article 22(3) rules. Statutory limitations not expressly pronounced applicable by the Constitution cannot be implied into it, and are inconsistent with it under Article 2(4) to the extent of that limitation.

p. 7
02

Whether the petition is an employment dispute disguised as a constitutional violation to defeat limitation

Holding

The reliefs sought depend on the constitutional issues raised, so the matter is properly litigated as a constitutional petition and escapes the doctrine of constitutional avoidance.

Reasoning

The court examined the alleged violations of fundamental rights, the alleged breach of the Constitution and the reliefs sought, and found they depended on the constitutional issues raised. The authority relied on by the respondents (Benjamin Wachira Ndiithi) did not come to their aid given the court's finding on limitation.

p. 8

Legal principles established

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  • Statutory limitation periods do not apply to proceedings to enforce the Bill of Rights under Articles 22 and 258 of the Constitution; only limitations expressly provided for in the Constitution or sanctioned by it under Article 24 apply.
  • The Constitution has primacy over all other laws, and statutory limitation provisions are inconsistent with the Constitution to the extent that they purport to limit proceedings under Articles 22 and 258.

Court orders

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  1. 1.The preliminary objection raised by the 1st, 2nd, 3rd and 4th respondents is dismissed

Authorities

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Legislation

  • Public Authorities Limitations of Actions Actsection 3(1), section 3(2)
  • Limitation of Actions Act (Cap. 22)section 4(1)(a)
  • Employment Act, 2007section 90, section 3(2)(6)
  • Employment and Labour Relations Court Act, 2011section 12(3)
  • Constitution of Kenya, 2010articles 2(4), 10, 22, 23, 24, 28, 35(1), 41, 47(1)(2), 50, 73, 75, 232, 236, 244(c), 246(3)(b), 258; section 7 of the Sixth Schedule
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms), Practice and Procedure Rules 2013 (Mutunga Rules)

Cases cited (7)

  • Benjamin Wachira Ndiithi v Public Service Commission & another
    (2014) eKLR
  • Hilarion Mwogbolo v Kenya Commercial Bank
    (2013) eKLR
  • Daniel Kago Gachanja v Inspector General & 2 others
    (2020) eKLR
  • Wachira Weheire v Attorney General
    (2010) eKLR
  • Dominic Arony Amolo v Attorney General
    (2003) eKLR
  • Gairy and another v Attorney General of Grenada
    (2002) AC 167
  • The Queen v Drybones
    (1970) SCR 282
Jurisdiction invoked
Articles 22 and 258 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights and of the Constitution)

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, "Ndueyira v Inspector General of Police & 3 others (Employment and Labour Relations Appeal E038 of 2020) [2023] KEELRC 2092 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2092/eng@2023-05-18

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