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ELRCDismissedPetition No E027 of 2022· [2024] KEELRC 304 (KLR)

Musau v Attorney General & 3 others (Petition E027 of 2022) [2024] KEELRC 304 (KLR)

Employment and Labour Relations Court
20 February 2024
2,220 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 2nd Respondent filed a Notice of Preliminary Objection dated 14th November 2023 seeking dismissal of the Petitioner's petition on four broad grounds: that the court lacked jurisdiction because the claim was time barred under Section 3(2) of the Public Authorities Limitations Act; that the subject matter fell outside the court's jurisdiction; that the Petitioner was using constitutional provisions to circumvent limitation law; and that the petition did not meet constitutional petition standards and was an abuse of process. The cause of action arose in 1982 with the Petitioner's release from the armed forces, and the petition was filed in early 2022, about 40 years later. The Petitioner filed no response or submissions. The court applied the Mukisa Biscuits test and found the objection competent, since limitation is a jurisdictional issue. It accepted that limitation of time does not apply to enforcement of fundamental rights unless the delay is inordinate and unexplained, and found the Petitioner's 40-year delay both inordinate and unexplained. It also found that the petition failed the Anarita Karimi Njeru threshold because the Petitioner did not set out the nature and extent of the alleged infringements of Sections 74(1) and 72(3) of the former Constitution. Nevertheless, the court held that the objection sought the exercise of its discretion on the delay, which ought not be exercised at the preliminary stage, and concluded that it has jurisdiction to hear and determine the petition. The preliminary objection was therefore not sustained, with each party bearing their own costs. The petition remains pending before the court.

Key legal issues

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01

Whether the Notice of Preliminary Objection is competent

Holding

It is competent, being a pure point of law on jurisdiction and limitation

Reasoning

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.

p. 3
02

Whether the petition is statute barred under the Public Authorities Limitations Act and whether the court lacks jurisdiction

Holding

The court holds it has jurisdiction to hear and determine the petition; the objection is not sustained

Reasoning

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.

p. 5
03

Whether the petition meets the constitutional petition threshold

Holding

The petition does not meet the Anarita Karimi Njeru threshold

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Parties shall bear their own costs

Authorities

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Legislation

  • Public Authorities Limitations ActSection 3(2)
  • Public Authorities Limitation Act, 1974Section 2(2)
  • Constitution of Kenya, 1969Sections 74(1), 72(3)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Limitation of Actions ActNot specified

Cases cited (13)

  • Bosire Ogero v Royal Media Services
    (2015) eKLR
  • Edward Akong'o Oyugi & 2 others v Attorney General
    (2019) eKLR
  • Wellington Nzioka Kioko v Attorney General
    (2018) eKLR
  • Daniel Kibet Mutai & 9 others v Attorney General
    (2019) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Pauline Wanjiru Thuo v David Mutegi Njuru
    CA 2778 of 1998
  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    (1989) KLI
  • Wamahiu Kihoro Wambugu v Attorney General
    Petition No. 468 of 2014
  • Mugo Theuri v Attorney General
  • Ochieng Kenneth Kogutu v Kenyatta University & 2 others
    Petition No. 306 of 2012
  • James Kanyita Nderitu v Attorney General & another
    Pet No. 180 of 2011
  • Anarita Karimi Njeru v Republic
    (1979) eKLR
  • Kiambu County Tenants Welfare Association v Attorney General & another
    (2017) eKLR
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

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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, "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.