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ELRCStruck OutPetition No E015 of 2023· [2023] KEELRC 2451 (KLR)

Fondo v Shah; Commission of Administrative Action & 3 others (Interested Parties) (Petition E015 of 2023) [2023] KEELRC 2451 (KLR)

Employment and Labour Relations Court
12 October 2023
ANAGNES KITIKU NZEI
1,425 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Employment Court struck out a 14-year-late unfair dismissal claim, confirming constitutional petitions cannot bypass Kenya's three-year time limit for employment cases.

What this practically means

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Executive summary

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The Petitioner petitioned the Employment and Labour Relations Court at Mombasa claiming he was employed as a house servant by the Respondent from 2/2/1997 and summarily dismissed on 17/1/2009 without valid reason or due procedure. He alleged the Respondent repeatedly promised to settle terminal dues, delaying him until the limitation period expired. Invoking Articles 10, 19, 20, 21, 22, 23, 41, 165(3)(b) and 258 of the Constitution, he sought declarations of rights violation and compensation for unlawful termination, together with a contemporaneous motion for a certificate of service. The Respondent filed a preliminary objection contending the claim was time-barred under Section 90 of the Employment Act, the cause of action having arisen on 17/1/2009 with the three-year period lapsing on 17/1/2012, and that the petition was an abuse of process. The court held that, although styled as a constitutional petition, the claim was a camouflaged attempt to file an employment suit out of time; employment rights under Article 41 are given effect in the Employment Act and Labour Relations Act, and a litigant cannot found a cause of action directly on the Constitution without challenging the validity of that legislation or pleading inadequate statutory remedies. Applying Summmaya Athman Hassan and Francis Atonya Ayeka, and noting Section 90 permits no extension of time, the court found the petition statute-barred and struck out both the Petition and the Notice of Motion, ordering each party to bear its own costs.

Key legal issues

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01

Whether the constitutional petition could circumvent the Employment Act

Holding

The petition was a camouflaged employment claim; employment rights must be enforced through the Employment Act and Labour Relations Act unless the legislation is challenged as invalid

Reasoning

The court examined the pleadings and found the declaratory orders sought would lead to an employment suit, and that the petitioner sought to enforce purely employment rights under Article 41. Since the petitioner had not sought invalidity of the Employment Act or alleged its remedies inadequate, the petition could not bypass the statute by relying directly on the Constitution.

p. 3
02

Whether the claim was time-barred under Section 90 of the Employment Act

Holding

Yes - the cause of action arose on 17/1/2009 and the three-year limitation period had long lapsed; Section 90 allows no extension of time

Reasoning

The summary dismissal on 17/1/2009 was the act giving rise to the cause of action, over fourteen years before filing. Section 90 makes no provision for extension of time once the three-year period lapses, so any proceedings brought afterwards are incompetent and must be struck out regardless of the form of pleading.

p. 3

Legal principles established

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  • Where legislation gives effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution without challenging that legislation
  • Section 90 of the Employment Act makes employment claims filed outside three years incompetent and striking out applies however the claim is styled

Court orders

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  1. 1.The Petition and the Notice of Motion dated 15/6/2023 are struck out
  2. 2.Each party to bear its own costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 19(2), 20(1)(2)(3)(4), 21(1)(2), 22, 23, 41(1)(2), 165(3)(b), 258
  • Employment Act 2007Section 90
  • Limitation of Actions ActSection 4(1)
  • Labour Relations Act

Cases cited (2)

  • Summmaya Athman Hassan -vs- Paul Masinge Simidi & Another
    [2019] eKLR
  • Francis Atonya Ayeka -vs- Kenya Police Service & Another
    [2017] eKLR
Jurisdiction invoked
Articles 22, 23, 165(3)(b) and 258 of the Constitution of Kenya 2010 (invoked by the Petitioner); court decided on jurisdictional limits under Section 90 of the Employment 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, "Fondo v Shah; Commission of Administrative Action & 3 others (Interested Parties) (Petition E015 of 2023) [2023] KEELRC 2451 (KLR)", Case Analysis (2023). Petition No E015 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2451/eng@2023-10-12

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