Musau v Attorney General & 3 others (Petition E027 of 2022) [2024] KEELRC 304 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Notice of Preliminary Objection is competent
It is competent, being a pure point of law on jurisdiction and limitation
The court applied the Mukisa Biscuits definition of a preliminary objection as a pure point of law. Limitation of actions is a jurisdictional issue, and jurisdiction is one of the classic examples given by Law JA. The objection therefore met the threshold and raised a threshold issue capable of disposing of the suit before hearing.
Whether the petition is statute barred under the Public Authorities Limitations Act and whether the court lacks jurisdiction
The court holds it has jurisdiction to hear and determine the petition; the objection is not sustained
While Section 3(2) of the Public Authorities Limitation Act bars contract claims against Government after three years, limitation does not apply to enforcement of fundamental rights unless the delay is inordinate and unexplained. Here the delay of about 40 years was indeed unexplained, but the objection sought the exercise of the court's discretion on delay, which should not be exercised at the preliminary stage. The court therefore retained jurisdiction.
Whether the petition meets the constitutional petition threshold
The petition does not meet the Anarita Karimi Njeru threshold
The Petitioner invoked Sections 74(1) and 72(3) of the former Constitution without setting out the nature and extent of the alleged infringement. Under the rule in Anarita Karimi Njeru, a petitioner must state with reasonable precision the complaint, the provisions said to be infringed and the manner of infringement. Despite this finding, the court did not strike out the petition.
Legal principles established
#- Limitation of actions is a jurisdictional issue; a court has no jurisdiction to hear and determine a statute-barred suit.
- Limitation of time does not apply to enforcement of fundamental rights and freedoms unless the delay is inordinate and unexplained.
- A petitioner must satisfy the Anarita Karimi Njeru threshold by setting out with reasonable precision the provisions infringed and the manner of infringement.
Court orders
#- 1.The court is persuaded that it has jurisdiction to hear and determine the instant petition (i.e. the 2nd Respondent's Notice of Preliminary Objection fails)
- 2.Parties shall bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over the Petitioner's constitutional petition challenging dismissal from the armed forces
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musau v Attorney General & 3 others (Petition E027 of 2022) [2024] KEELRC 304 (KLR)", Case Analysis (2024). Petition No E027 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/304/eng@2024-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.