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ELRCStruck OutPetition dated 1st September, 2022 (filed 29th September, 2022)· [2023] KEELRC 2753 (KLR)

Mithamo v Nairobi Water & Sewerage Company (Petition E010 of 2022) [2023] KEELRC 2753 (KLR)

Employment and Labour Relations Court
2 November 2023
DNDavid Nderitu
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioner, formerly employed by the respondent as a marketing assistant from 10th February, 2012, was summarily dismissed on 15th December, 2017 on grounds of gross misconduct relating to irregular allocation and installation of water meters. He filed a constitutional petition on 29th September, 2022 seeking declarations that the dismissal breached Articles 27, 41, 47 and 50 of the Constitution, certiorari to quash the dismissal, reinstatement with back pay, mandamus for general damages, and costs. The respondent filed a preliminary objection on three grounds: the claim was time barred under Section 90 of the Employment Act; the court lacked jurisdiction to extend time; and territorial jurisdiction was lacking as the matter was filed at Nakuru though the cause of action arose in Nairobi. The petition was unopposed at the hearing of the objection. The court allowed the objection. It held the petition was filed nearly five years after dismissal, well outside the three-year limitation period, and that disguising a stale claim as a constitutional petition could not circumvent limitation. The court further held it had no power to extend time, and no such application had been made. On territorial jurisdiction, the court observed that the ELRC enjoys High Court status with nation-wide jurisdiction, and that ground alone would have warranted transfer to Nairobi rather than striking out. The petition was struck out with costs to the respondent, the court deploring the trend of elevating ordinary dismissal claims to constitutional petitions as an abuse of process.

Key legal issues

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01

Limitation of employment claims

Holding

The petition filed almost five years after dismissal is time barred under Section 90 of the Employment Act and must be struck out

Reasoning

Section 90 of the Employment Act requires that civil actions arising out of employment or contracts of service be commenced within three years of the act complained of. The petitioner was dismissed on 15th December, 2017 and filed the petition on 29th September, 2022, nearly five years later. Framing the claim as a constitutional petition does not evade limitation, and the decided authorities cited by the respondent support striking out.

p. 3
02

Power to extend time

Holding

The court has no jurisdiction to extend time for filing employment claims, and no such application was even made

Reasoning

The court held that the law is exact that employment claims must be filed within three years of the cause of action. Even if an application for extension had been filed, which it was not, it would have been denied. The authorities in Maria Machocho and Nicodemus Marani support this position and ground 2 of the PO was upheld.

p. 3
03

Territorial jurisdiction

Holding

The ELRC has nation-wide jurisdiction, so filing at Nakuru rather than Nairobi was not fatal on its own and would have warranted transfer only

Reasoning

The court acknowledged that the ELRC enjoys the status of the High Court and hence has nation-wide jurisdiction. While claims should logically be filed at the court nearest the cause of action to reduce costs, a purely territorial objection would result in transfer, not striking out. The petitioner worked and resided in Nairobi, and no reason was given for filing at Nakuru. This ground alone would not have succeeded.

p. 3

Legal principles established

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  • Employment and labour relations claims must be filed within three years of the cause of action under Section 90 of the Employment Act, and disguising a stale claim as a constitutional petition does not circumvent limitation
  • The ELRC has no power to extend time for filing employment claims outside the three-year limitation period
  • The ELRC enjoys the status of the High Court with nation-wide jurisdiction, but territorial objections alone warrant transfer rather than striking out

Court orders

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  1. 1.The preliminary objection dated 7th November, 2022 is allowed
  2. 2.The petition is struck out with costs to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 41, 47, 50, 43
  • Employment ActSection 90
  • Fair Administrative Actions Actgenerally
  • Limitation of Actions ActSection 4(1)

Cases cited (5)

  • The Matter of the Interim Independent Electoral Commission
    (2011) eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR
  • Fred Mudave v G4S Services (K) Ltd
    (2014) eKLR
  • Maria Machocho v Total Kenya Limited
    (2013) eKLR
  • Nicodemus Marani v Timesales Limited
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implied by the court's status); limitation 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, "Mithamo v Nairobi Water & Sewerage Company (Petition E010 of 2022) [2023] KEELRC 2753 (KLR)", Case Analysis (2023). Petition dated 1st September, 2022 (filed 29th September, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2753/eng@2023-11-02

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