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ELRCStruck OutPetition dated 10.01.2023· [2023] KEELRC 2488 (KLR)

Mburu v Inspector General of Police & 2 others (Petition 57 of 2023) [2023] KEELRC 2488 (KLR)

Employment and Labour Relations Court
17 October 2023
BOByram Ongaya
1,175 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court struck out a police officer's constitutional petition because it did not clearly identify which constitutional rights were violated.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Byram Ongaya, Principal Judge, on 17 October 2023, determined a preliminary objection dated 9 June 2023 raised by the 1st and 3rd respondents (through the Hon. Attorney General's counsel, Vivian Kirina) against a constitutional petition dated 10 January 2023 in which the petitioner, a former police officer, challenged the fairness of the administrative process culminating in his dismissal, relying on Article 50 of the Constitution and Section 89 of the National Police Service Act. The respondents objected on five grounds: that the petition was time barred under Section 4(1)(a) of the Limitation of Actions Act and Section 3(2) of the Public Authorities Limitation Act, the cause of action having arisen on termination in 2019; that the petitioner was circumventing the employment court's statutory regime by resorting to constitutional provisions; that the violations were not pleaded with precision per Mumo Matemu and Annarita Karimi Njeru; that the suit was an abuse of process; and that it ought to be struck out with costs. The 2nd respondent supported the objection. The petitioner opposed, relying on Joseph Mwenda Mboko and Maxwell Onduso. The court held that the petition failed to particularise the Articles violated and the specific acts of infringement, and that generalized allegations do not meet the pleading threshold for constitutional petitions. However, the limitation ground collapsed because the objection did not disclose the specific cause of action and the precise limitation period breached. The preliminary objection was upheld on the pleading ground alone, the petition was struck out, and each party was ordered to bear own costs of the petition.

Key legal issues

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01

Adequacy of pleading in a constitutional petition

Holding

The petition failed the pleading threshold for constitutional petitions and was struck out on that ground

Reasoning

The court found the petition did not identify the Articles of the Constitution said to have been violated nor the specific acts of violation. The allegations were generalized and not disclosed in the petition. Because precision is required in constitutional petitions, the preliminary objection succeeded on that ground even though the limitation ground failed. The petition was therefore struck out with each party bearing own costs.

p. 3
02

Limitation of actions as a ground of preliminary objection

Holding

The limitation ground of the preliminary objection failed for want of specificity

Reasoning

The court held that the preliminary objection, on its face and in submissions, did not disclose the specific cause of action and the precise prescribed limitation period breached. It was unclear when time began to run and which statutory provision was violated. Consequently this ground collapsed, and the objection was upheld only on the pleading-precision ground rather than on limitation.

p. 3

Legal principles established

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  • A constitutional petition must particularise the Articles of the Constitution violated and the specific acts of infringement; generalized allegations do not meet the pleading threshold

Court orders

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  1. 1.The preliminary objection is upheld upon the ground that the petition has failed to pass the threshold for pleadings in constitutional petitions
  2. 2.The petition is struck out
  3. 3.Each party to bear own costs of the petition

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)(a), Cap. 22 Laws of Kenya
  • Public Authorities Limitation ActSection 3(2), Cap. 39 Laws of Kenya
  • Constitution of Kenya, 2010Article 50
  • National Police Service ActSection 89

Cases cited (16)

  • Mumo Matemu v Trusted Society of Human Rights Alliance
    (2013) eKLR
  • Annarita Karimi Njeru
    (1979) eKLR
  • Mary Kasiwa v Scorpio Enterprises Limited
    (2013) eKLR
  • Benjamin Wachira Ndiithi v Public Service Commission & Another
    (2014) eKLR
  • Hilarion Mwabolo v Kenya Commercial Bank
    (2013) eKLR
  • YH Wholesalers Limited v Kenya Revenue Authority
    (2021) eKLR
  • Banking Insurance and Finance Union (K) v Bank of India
    (2013) eKLR
  • Beatrice Kahai Adagala v Postal Corporation of Kenya
    (2015) eKLR
  • Maxwell Sifuna v Teachers Service Commission
    (2022) eKLR
  • Peter Ndegwa Nderitu v Teachers Service Commission
    (2019) eKLR
  • Josephat Ndirangu v Henkel Chemicals (EA) Ltd
    (2013) eKLR
  • Alphonse Mwangemi Munga & 10 Others v African Safari Club Limited
    (2008) eKLR
  • Divecon v Simani
    (1995 – 1998) EA 48
  • Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers v Embakasi Girls Secondary School
    (2018)
  • Joseph Mwenda Mboko v Provisional Police Officer, Central Police & 2 Others
    (2013) eKLR
  • Maxwell Onduso v National Police Service & 3 Others
    (2021) eKLR
Jurisdiction invoked
Article 50 of the Constitution of Kenya, 2010 (invoked by the petitioner as the basis of the petition); employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Mburu v Inspector General of Police & 2 others (Petition 57 of 2023) [2023] KEELRC 2488 (KLR)", Case Analysis (2023). Petition dated 10.01.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2488/eng@2023-10-17

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