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ELRCStruck OutNot stated in the judgment· [2023] KEELRC 2613 (KLR)

Kiilu v Kenya Airports Authority (Petition E071 of 2023) [2023] KEELRC 2613 (KLR)

Employment and Labour Relations Court
19 October 2023
MNMathews N. Nduma
540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an unfair termination claim filed more than three years late, ruling a constitutional petition cannot bypass the Employment Act's time limit.

What this practically means

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Executive summary

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The petitioner, employed by the respondent in 1979 and rising from wireman to electrical inspector and electrical technician, sued over the termination of his employment on 9 August 2018 on grounds of negligence of duty, filing a petition on 4 April 2023. The respondent raised a preliminary objection that under section 90 of the Employment Act, 2007, suits based on a contract of employment must be filed within three years of the cause of action arising, and the claim was therefore statutorily barred. The court agreed, holding that the petition was in substance a mundane claim for unlawful and unfair termination disguised as a constitutional petition, and that the form of the pleading is irrelevant where the dispute is clearly founded on a contract of employment. Relying on Fred Mudave Gogo v G4S Security Services, Nicodemus Marani v Timsales Limited, and the Supreme Court's decision in Samuel Kamau Macharia on the statutory and constitutional sources of jurisdiction, the court held it lacked jurisdiction to entertain the suit and could not extend the limitation period. The petition was struck out, with each party ordered to bear their own costs.

Key legal issues

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Whether the three-year limitation under section 90 of the Employment Act bars a termination claim filed over four years late, even when couched as a constitutional petition

Holding

Yes. The suit is a mundane unfair termination claim disguised as a constitutional petition; the cause of action arose on 9 August 2018 and suit was filed on 4 April 2023, so it is statutorily barred and the court lacks jurisdiction.

Reasoning

The court identified the cause of action as the 2018 termination, computed that suit was filed more than four years later, and applied section 90 of the Employment Act. Following Fred Mudave Gogo, the form of the pleading is immaterial where the dispute is plainly contractual. Relying on Samuel Kamau Macharia, jurisdiction derives from the Constitution or legislation, so the court struck out the petition.

p. 1

Legal principles established

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  • A claim based on a contract of employment must be commenced within three years under section 90 of the Employment Act, and disguising such a claim as a constitutional petition does not escape the limitation bar
  • The court's jurisdiction flows from the Constitution or legislation or both, and it cannot extend the period for filing a suit founded on a contract of employment

Court orders

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  1. 1.The petition is struck out for lack of jurisdiction to hear and determine the same
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 90
  • Limitation of Actions Act (cap. 22)section 4(1)

Cases cited (3)

  • Fred Mudave Gogo v G4S Security Services (K) Limited
    [2014] eKLR
  • Nicodemus Marani v Timsales Limited
    Industrial Cause No. 204 of 2014
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited and 2 Others
    SC Application No. 2 of 2012 [2012] eKLR
Jurisdiction invoked
Section 90 of the Employment Act, 2007 (limitation); jurisdiction derived from the Constitution and legislation

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, "Kiilu v Kenya Airports Authority (Petition E071 of 2023) [2023] KEELRC 2613 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2613/eng@2023-10-19

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