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ELRCDismissedPetition dated 18th March 2021· [2023] KEELRC 2708 (KLR)

Kwonyike v Chief of Defence Forces & 2 others (Employment and Labour Relations Petition 52 of 2021) [2023] KEELRC 2708 (KLR)

Employment and Labour Relations Court
27 October 2023
AMANNA NGIBUINI MWAURE
3,077 words in judgment
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The bottom line

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A former Kenyan Army colonel lost his claim for unpaid salary and allowances because he filed his case nine years too late.

What this practically means

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Executive summary

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A former colonel of the Kenya Army petitioned the Employment and Labour Relations Court claiming that, while seconded to African Union missions in Sudan and Libya, he was unprocedurally removed from the KDF payroll and his salary and allowances were not paid from 26th December 2008 to February 2012. He alleged discriminatory and degrading treatment of himself and his children, whom he said were denied housing allowances as he was a widower on an unaccompanied mission, and pleaded legitimate expectation to contractual pay. The Respondents, through a Replying Affidavit of Major Daniel Mutunga Mutua, showed the Petitioner was paid for an initial one-year tour, then voluntarily requested secondment to the AU under secondment instructions that expressly ceased his KDF salary and allowances from 26th December 2008, with the AU paying him a monthly lumpsum of USD 5,957.04, pursuant to the Armed Forces Pay and Allowances Regulations 2007 and Standing Instructions 2005. The court framed three issues: limitation and delay, discrimination, and entitlement to reliefs. Applying section 90 of the Employment Act, section 3 of the Public Authorities Limitation Act and precedent holding that petitions founded on contract are subject to limitation, the court found the petition, filed nine years late, time barred. On secondment principles, it held the Petitioner willingly accepted the secondment terms without coercion and no evidence proved non-payment or discrimination. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Limitation and inordinate delay

Holding

The petition, filed nine years after the alleged non-payment (26 December 2008 to February 2012), was time barred under Section 90 of the Employment Act and Section 3 of the Public Authorities Limitation Act

Reasoning

Although there is no limitation period for enforcing fundamental rights, the court may consider inordinate delay. The claim was essentially contractual/employment-related, so limitation statutes applied. The petition filed on 18th March 2021 was nine years late with no reasonable explanation, hence time barred.

p. 5
02

Discrimination in non-payment of salary and allowances

Holding

No discrimination; the Petitioner voluntarily accepted secondment to the AU on terms that ceased his KDF salary and allowances from December 2008

Reasoning

The Petitioner requested secondment to the AU and accepted its contract terms, including the cessation of KDF salary from December 2008, without coercion. Under secondment law, the receiving employer meets salary and benefits per its contract. No evidence proved withholding of salary or discriminatory treatment of the Petitioner or his children.

p. 6
03

Entitlement to reliefs

Holding

Not entitled; the petition was dismissed for want of merit and being out of time

Reasoning

Having failed on limitation and discrimination, and the court being oustered of jurisdiction by the expiry of the limitation period, the petition had no merit and was dismissed with each party bearing its own costs.

p. 6

Legal principles established

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  • Claims founded on contract brought by way of petition are still subject to statutory limitation periods
  • A civil action arising out of a contract of service must be commenced within three years
  • An employee on secondment is paid by the receiving employer per the secondment contract, and the secondment does not alter terms absent agreement

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear their own costs of the petition
Jurisdiction invoked
Constitution of Kenya (enforcement of fundamental rights and freedoms; employment and labour relations jurisdiction)

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, "Kwonyike v Chief of Defence Forces & 2 others (Employment and Labour Relations Petition 52 of 2021) [2023] KEELRC 2708 (KLR)", Case Analysis (2023). Petition dated 18th March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2708/eng@2023-10-27

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