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ELRCStruck Out· [2024] KEELRC 338 (KLR)

Nyatangi v National Treasury & Planning & 2 others (Petition E188 of 2022) [2024] KEELRC 338 (KLR)

Employment and Labour Relations Court
23 February 2024
SRSTELLA RUTTO
2,796 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court struck out a dismissed civil servant's petition because it was filed more than three years after his dismissal, confirming time limits apply even to constitutional petitions.

What this practically means

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Executive summary

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The 1st and 3rd Respondents raised a preliminary objection against a constitutional petition filed on 7th November 2022 by a former employee dismissed on 18th January 2018 for gross misconduct, contending that the court lacked jurisdiction because the claim was statute-barred under Section 90 of the Employment Act, that the dispute should have been brought as an ordinary employment claim rather than a constitutional petition, and that the petition was an abuse of process. The Petitioner countered that no limitation period applies to constitutional petitions, that his remedies were only available in a petition, and that time did not run while he pursued an appeal to the Public Service Commission and a subsequent review, which concluded in April 2022. Justice Stella Rutto framed two issues: whether Section 90 limitation applies to constitutional petitions concerning employment, and whether time was suspended pending the internal appeal and review. She held that the dispute was rooted in the contract of service and that adjudicating the alleged Article 50 fair-hearing violation would necessarily engage Sections 41, 43 and 45 of the Employment Act, making it the primary statute. Following Gabriel Mutava and other ELRC authorities, she held the Petitioner should have anchored his claim under the Employment Act. She further held that limitation ran from the date of dismissal and that internal appeal and review processes did not arrest time, those processes not being prerequisites to litigation. Upholding the objection, the Court struck out the petition as time-barred and ordered each party to bear its own costs.

Key legal issues

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01

Whether Section 90 of the Employment Act applies to constitutional petitions in employment matters

Holding

Yes; where a dispute stems from a contract of service and is primarily governed by the Employment Act, a constitutional petition is subject to the three-year limitation in Section 90.

Reasoning

The Petitioner's case arose from his contract of service and the disciplinary process leading to dismissal. Determining the alleged violation of fair hearing would require applying Sections 41, 43 and 45 of the Employment Act, making it the primary statute. Relying on Gabriel Mutava, the court held the constitutional route was misguided and the claim should have been anchored in the Employment Act.

p. 4
02

Whether time stopped running during the Petitioner's appeal and review

Holding

No; the cause of action accrued on the date of dismissal and internal appeal/review processes did not suspend limitation.

Reasoning

The cause of action arose on 18th January 2018 when the Petitioner was dismissed. Following Benjamin Wachira Ndiithi and Bramwel Okunda Mayienga, the court held that accrual is not held in abeyance pending internal review or appeal. The appeal and review under Sections 74 and 75 of the Public Service Commission Act are also not a prerequisite to moving the Court.

p. 5

Legal principles established

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  • Limitation under Section 90 of the Employment Act applies to constitutional petitions founded on employment contracts; a constitutional petition cannot be used to sidestep limitation.
  • Pursuit of an internal appeal or review does not suspend the running of limitation time.

Court orders

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  1. 1.The Preliminary Objection dated 3rd October 2023 is upheld
  2. 2.The Petition filed on 7th November 2022 is struck out for being time barred
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSections 41, 43, 45
  • Limitation of Actions ActSection 4(1)
  • Public Service Commission ActSections 74, 75, 87(2)
  • Labour Relations Actnot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48, 50

Cases cited (6)

  • Gabriel Mutava & 2 others v Managing Director, Kenya Ports Authority & another
    [2016] eKLR
  • Peter Ndegwa Nderitu v Teachers Service Commission
    [2019] eKLR
  • Mukhtar Salat Mohamed v National Police Service Commission & 3 others
    [2021] eKLR
  • Simon Titus Yandi v National Police Service Commission & Attorney General
    [2020] eKLR
  • Benjamin Wachira Ndiithi v Public Service Commission & another
    [2014] eKLR
  • Bramwel Okunda Mayienga v Teachers Service Commission
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment dispute; jurisdiction challenged on the preliminary objection)

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, "Nyatangi v National Treasury & Planning & 2 others (Petition E188 of 2022) [2024] KEELRC 338 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/338/eng@2024-02-23

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