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ELRCStruck Outnot stated in the extract· [2023] KEELRC 3103 (KLR)

Achieng v Cabinet Secretary, Ministry of Education & another (Petition E019 of 2023) [2023] KEELRC 3103 (KLR)

Employment and Labour Relations Court
27 November 2023
BOByram Ongaya
1,007 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a dismissed employee's constitutional petition because it was filed years too late—internal appeals don't extend time limits.

What this practically means

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Executive summary

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The 1st respondent raised an amended preliminary objection dated 11.10.2023 contending that the petition was filed outside the mandatory limitation periods under section 90 of the Employment Act, section 4(1)(a) of the Limitation of Actions Act and section 3(2) of the Public Authorities Limitation Act; that the petitioner was circumventing the Employment and Labour Relations Court by pleading constitutional provisions; that the violations were not pleaded with precision per Mumo Matemu and Anarita Karimi Njeru; and that the suit was an abuse of process. The petitioner opposed, arguing the objection raised evidentiary issues on the dismissal date, that violations were continuing, and that the court had jurisdiction under Article 162(2)(a) and section 12(1) of the ELRC Act. After considering submissions, the court upheld the objection. It found the petitioner was summarily dismissed on 05.10.2016 for gross misconduct; an appeal was disallowed on 15.03.2017 and a review application was declined on 09.12.2021. The three-year limitation period lapsed on 05.10.2019, and even treating the review refusal as a continuing injury, the 12-month period lapsed on 09.12.2022, while the petition was filed on 01.02.2023. The court held that the internal appeal or review did not operate as a stay of the dismissal, that all allegations concerned the fairness of the 2016 termination, and that the petition was trapped by the avoidance principle. The preliminary objection was upheld and the petition dismissed, with each party bearing its own costs.

Key legal issues

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01

Whether the petition was filed outside the statutory limitation period

Holding

Yes. The dismissal took effect on 05.10.2016; the three-year period lapsed on 05.10.2019, and even treating the review refusal as continuing injury, 12 months lapsed on 09.12.2022, before filing on 01.02.2023.

Reasoning

The court traced the chronology: summary dismissal on 05.10.2016, appeal disallowed on 15.03.2017, review disallowed on 09.12.2021, and petition filed 01.02.2023. It found nothing stopped the petitioner from moving promptly after dismissal, that the appeal or review did not stay the dismissal, and that all allegations in the petition related to the fairness of the 2016 termination, so the claim was time barred.

p. 3
02

Whether the constitutional petition circumvented limitation under the avoidance principle

Holding

Yes. The court agreed with the preliminary objection ground that the petition was filed to circumvent statutory limitation.

Reasoning

The court accepted that instead of filing a suit after dismissal within the limitation period, the petitioner belatedly invoked constitutional provisions. It found nothing in the petition to explain the belated filing and no alleged violations going beyond the cause of action flowing from the summary dismissal, rendering the petition an impermissible avoidance of section 90 of the Employment Act.

p. 3

Legal principles established

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  • The avoidance principle: a party cannot dress a statute-barred employment claim as a constitutional petition to circumvent limitation periods.
  • An internal appeal or review does not operate as a stay of dismissal for limitation purposes unless so shown.

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The petition is dismissed
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Employment Actsection 90
  • Limitation of Actions Act, Cap 22 Laws of Kenyasection 4(1)(a)
  • Public Authorities Limitation Act, Cap 39 Laws of Kenyasection 3(2)
  • Constitution of KenyaArticle 162(2)(a)
  • Employment and Labour Relations Court Act, No. 20 of 2011section 12(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 7(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Mutunga Rules)

Cases cited (2)

  • Mumo Matemu -v- Trusted Society of Human Rights Alliance
    (2013) eKLR
  • Anarita Karimi Njeru vs. The Republic
    [1979] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution; section 12(1) of the Employment and Labour Relations Court Act, No. 20 of 2011 (asserted by the petitioner)

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, "Achieng v Cabinet Secretary, Ministry of Education & another (Petition E019 of 2023) [2023] KEELRC 3103 (KLR)", Case Analysis (2023). not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3103/eng@2023-11-27

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