Mberia v Council, Jomo Kenyatta University of Agriculture and Technology (Civil Appeal 430 of 2019) [2025] KECA 730 (KLR)
The bottom line
#The Court of Appeal confirmed Kenyan employees cannot win reinstatement if they sue more than three years after dismissal, and constitutional claims need specific proof.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge was right in not ordering reinstatement of the appellant
- 2.Whether, on the evidence, the Judge erred in not finding that the appellant's constitutional rights were violated or that he was discriminated against
Key legal issues
#Availability of reinstatement as a remedy on appeal
The trial court correctly declined reinstatement because the statutory three-year window under section 12(3)(iii) of the Employment and Labour Relations Act had lapsed; the claim itself was filed about five years after dismissal.
Section 12(3)(iii) of the Employment and Labour Relations Act and section 49(3)(a) of the Employment Act govern reinstatement. Reinstatement is discretionary, not automatic, and guided by section 49(4) factors including the practicability of reinstatement and the common law principle against specific performance of a contract of service except in very exceptional circumstances. Here the statutory time bar alone disposes of the remedy.
Alleged violation of constitutional rights and discrimination for union membership
The appellant failed to plead with particularity the constitutional provisions infringed and the specific instances of discrimination; the claim was not made out and the constitutionalisation of an ordinary employment dispute was unwarranted.
Applying the Anarita Karimi Njeru standard, a party must identify the constitutional provisions violated and itemise the manner of infringement. The trial court found no specific instances of discrimination were proved, the respondent did not hinder union participation, and the appellant obtained court orders allowing union officials access. The Court endorsed Rika J's caution against trivialising the Constitution by characterising every dispute as a constitutional violation.
Appellate court's approach to findings of fact of the trial court
The first appellate court re-evaluates the evidence and draws its own conclusions while according due regard to the trial court's advantage of seeing and hearing witnesses, but interferes only on established grounds.
Citing Seascape Ltd v Development Finance Company of Kenya and J.S.M. v E.N.B., the Court restated that it revisits the evidence to reach its own conclusions, noting the trial court's advantage, but intervenes only where conclusions rest on no evidence, on misapprehended evidence, or where the judge demonstrably acted on wrong principles. On both issues the trial court's conclusions were upheld.
Legal principles established
#- Reinstatement under section 12(3)(iii) of the Employment and Labour Relations Act cannot be granted where three years have passed since the dismissal.
- A party alleging breach of constitutional rights must identify the specific provisions infringed and give instances and particulars of the infringement; not every employment dispute is a constitutional question.
- An appellate court may interfere with the trial court's conclusions only where they were based on no evidence, the evidence was misapprehended, or the judge acted on wrong principles.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment as provided
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court (not expressly stated in the judgment; the Court exercised its mandate to re-evaluate the evidence and conclusions of the trial court)
Relief refused
#Reinstatement to his previous post and rank
Under section 12(3)(iii) of the Employment and Labour Relations Act reinstatement could not be granted as more than three years had elapsed since the dismissal; the remedy is also discretionary and exceptional
Damages for breach of constitutional rights and for discrimination
The appellant did not specify the constitutional provisions infringed or give particulars of the violations; the evidence did not support discrimination
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
By operation of the law, we find, the appellant could not be reinstated, and therefore the court’s decision could not be faulted.
We reiterate that the appellant was required to indicate which provisions of the Constitution had been infringed or violated in his case, and to give instances and particulars of how the rights had been infringed or violated.
If every legal question is constitutionalized, the overall efiect is the delusion of constitutional protections. Not all actions that impugned on constitutional values call for a constitutional answer.
In conclusion, we find no merit in the appeal and dismissed it with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mberia v Council, Jomo Kenyatta University of Agriculture and Technology (Civil Appeal 430 of 2019) [2025] KECA 730 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/730/eng@2025-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.