keelrc-2019-00268

ELIZABETH OLAGO.........................................................17 TH PETITIONER FAITH W. KURIA................................................................18 TH PETITIONER BANCY M. KAMAU............................................................19 TH PETITIONER MICHAEL K. ILUMBI........................................................20 TH PETITIONER PAUL J. MWENE..................................................................21 ST PETITIONER MARK MUNENE..................................................................22 ND PETITIONER JULIANA W. MUROGO......................................................23 RD PETITIONER ESTHER WABAIKAMIRU NGATA...................................24TH PETITIONER JAMES K. WAITHAKA........................................................25 TH PETITIONER MAGDALENE N. MUNENE.................................................25 TH PETITIONER LUCY P.W. KIBATHI.............................................................27 TH PETITIONER ROSE N. MUSYOKA..............................................................28 TH PETITIONER VINCENT O. OJUNGA..........................................................29 TH PETITIONER IRENE VIATA MUTHAMI....................................................30 TH PETITIONER EDWINA W. KIARO...............................................................31 ST PETITIONER ISACK DAWA GOLOMBO....................................................32 ND PETITIONER HELLEN WANJIKU K. .........................................................33 RD PETITIONER NANCY W. MAINA.................................................................34 TH PETITIONER FLORENCE W. NGOTHO.....................................................35 TH PETITIONER PAUL KURIA NGUGI.............................................................36 TH PETITIONER JOEL KITAVI TIMOTHY.......................................................37 TH PETITIONER MARGARET' W. GICHIU......................................................38 TH PETITIONER KARANJA MUURI..................................................................39 TH PETITIONER ANNE KIHIU............................................................................40 TH PETITIONER VERSUS BARCLAYS BANK OF KENYA LIMITED..................................RESPONDENT RULING Before this Court, is the Respondent’s Notice of Preliminary Objection dated 5 th April 2019 wherein the Respondent has raised a preliminary objection against the Petition on the following groundsa. Section 90 of the Employment Act 2007 provides that no civil action or proceedings based or arising out of that Act or a contract of service in general shall lie or be instituted unless such are commenced within 3 years of the act, neglect or default complained about.

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b. The Petition is time-barred by dint of section 90 of the Employment Act 2007 as the alleged cause of action arose in the year 2013. c. The Petition – although instituted as a constitutional petition – is purely a labour relations dispute with no constitutional rights and issues for determination. The Preliminary objection was disposed of by way of written submissions. The Respondent filed their written submissions on 14 th June 2019 while the Petitioners filed theirs on 2nd July 2019. The Respondent submitted that the preliminary objection raised ought to be upheld because these proceedings were instituted 6 years after the cause of action arose. Secondly that the issues arising have been disguised as constitutional in nature yet they are purely employment and labour relations in nature, thus do not invoke the provisions of the Constitution. The Respondent further submitted that the issue of the issuance of a discriminatory package to a section of its employees and the ill treatment they experienced during the computation of their dues can be addressed under section 87 of the Employment Act. They are of the position that the petition is an attempt to circumvent the provisions of section 90 of the Employment Act. As such, it is an abuse of the court process and a waste of judicial time. The Respondent relies on the case of Gabriel Mutava & 2 Others vs. Managing Director Kenya Ports Authority & Another [2016] eKLR where the Court of Appeal held- “Back home and in a string of cases, this Court has severally held that where a right is regulated by legislation, such legislation, and not the underlying constitutional right, becomes the primary means for giving effect to the constitutional rights.” The Respondent also relies on the cases of Peter Lubale Lubullellah vs. Kenya National Union of Teachers [2017] eKLR and Peter Ndegwa Nderitu vs. Teachers Service Commission [2019] eKLR. The Respondent further submits that if the Petitioners are allowed to pursue the claim, the Respondent will be prejudiced because they will not be capable of procuring the best witness or mount the best defence hence infringing on its constitutional right to a fair trial as under article 50 of the Constitution. For the Petitioners it is submitted that the Respondent’s preliminary objeciton is misplaced and fatally defective since the question of whether the petition raises valid constitutional issues should be determined at the substantive stage of the proceedings. They rely on the case of Beatrice Wanjiru and 2 Others vs. The Attorney General & Another [2017] eKLR. The Petitioners also submitted that there is no hindrance for an aggrieved party to file a petition where a dispute is of an employment nature. They further submitted that the petition herein was a proper constitutional petition as evidenced in the issues raised and the orders sought. It was their position that their rights under articles 2, 10, 27, 28, 41, 43 and 47 were violated when the Respondent issued to its employees an exit package that favoured those who had worked for a shorter time. They relied on the cases of Munir Sheikh Ahmed vs. National Bank of Kenya [2018] eKLR, Barclays Bank of Kenya & Another vs. Gladys Muthoni & 20 Others [2018] eKLR and United States International University (USIU) vs. Attorney General & 2 Others [2012] eKLR. The Petitioners submitted that there is no time limit set within which claims for constitutional violations should be instituted. They further submitted that the issues before this court emanate from violations of their constitutional rights hence their claim is not time barred as set out in section 90 of the Employment Act. They rely on the cases of Clement Ernest Opiyo Murenga vs. Principal Secretary, Treasury & Another [2017] eKLR, Agnes Wachu Wamae & 104 Others vs. Barclays Bank of Kenya [2018] eKLR, Edward Akong’o Oyugi & 2 Others vs. The Attorney General [2019] eKLR and Beatrice Wanjiru & 2 Others vs. The Attorney General & Another [2017] eKLR. Analysis and Determination After considering the arguments and submissions by the parties regarding the preliminary objection, the issues for determination are – a. Whether the Petition is time barred. b. Whether the Petition as filed raises constitutional issues Limitation of Time It is not disputed that the Petitioners ceased to be employed around 6 years ago. As rightfully posited by the Respondent, section 90 of the Employment Act requires an aggrieved party to institute employment and labour relations proceedings within 3 years of the act, neglect or default complained of. The Respondent further submitted that the issues raised in the Petition as constitutional issues are aptly covered in the Employment Act hence it ought to be dismissed since it is a claim disguised as a petition. It relies on Section 5(3) of the Employment Act provides as follows- “No employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee— a. On grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, marital status or HIV status;

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b. In respect of recruitment, training, promotion, terms and conditions of employment, termination of employment or other matters arising out of the employment.” The facts of the case are that the petitioners applied for the voluntary early retirement package offered by the respondent. This is an employment matter relating to discrimination in the payment of terminal benefits and would adequately be addressed under Section 5 of the Employment Act. As was stated in the case of Gabriel Mutava and 2 Others –V- Managing Director Kenya Ports Authority and Another (supra) this is a matter adequately provided for in the Employment Act. I would agree that the reason the petitioner approached the court by way of petition is to circumvent the provisions on limitation in Section 90 of the Employment Act. For the foregoing reasons the preliminary objection succeeds with the result that the petition is dismissed with no orders for costs. DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 22ND DAY OF NOVEMBER 2019 MAUREEN ONYANGO JUDGE

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