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ELRCStruck OutPetition (ELRC, Nairobi) - Ruling on Notice of Preliminary Objection dated 18th February 2020

Thuita Mwangi v Attorney General & 2 others [2021] KEELRC 1467 (KLR)

Employment and Labour Relations Court
10 June 2021
MMM. Mbaru
3,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a former Permanent Secretary's constitutional petition because employment claims must be filed within three years, no matter how they are framed.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (M. Mbaru, J) determines preliminary objections by the respondents to a petition by the former Permanent Secretary in the Ministry of Foreign Affairs, who challenged his retirement from the public service effected by notice dated 28th June 2016 and backdated to 1st July 2013 on grounds of reorganisation of government and abolition of office. The respondents objected that the petition, filed on 24th December 2019, was time barred under section 90 of the Employment Act, circumvented that Act by relying on constitutional provisions, and was an abuse of process. The petitioner countered that as a state officer the Employment Act did not apply to him, that his service was protected under Articles 236 and 260 of the Constitution, and that the criminal proceedings against him, in which he was absolved, tolled time. The court framed three issues: limitation under section 90, constitutional violations, and striking out. Holding that the claims and remedies sought (declaration of unfair termination, reinstatement, compensation, terminal dues) are governed by the Employment Act, and that section 90 is in mandatory terms, the court found the petition filed outside three years of the cause of action. Criminal proceedings do not enlarge time. The court applied authority that where legislation gives effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution without challenging the statute. The petition was struck out with each party bearing own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petitioner is time barred under the provisions of section 90 of the Employment Act
  2. 2.Whether there are constitutional violations
  3. 3.Whether the petition should be struck out

Key legal issues

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01

Whether the petition is time barred under section 90 of the Employment Act

Holding

The petition is time barred. Termination took effect on the notice dated 28th June 2016 and the petition filed on 24th December 2019 falls outside the three-year period

Reasoning

The court found the claim and remedies sought are governed by the Employment Act (sections 41, 43, 45, 49 and 40 on redundancy). Section 90 is in mandatory terms requiring commencement within three years. The petitioner's assertions of having filed in time were contradicted by the record showing filing on 24th December 2019. Criminal proceedings in the anti-corruption cases could not enlarge time.

p. 5
02

Whether the petitioner, as a former Permanent Secretary, falls outside the Employment Act and section 90 as a state officer

Holding

Section 90 applies notwithstanding the position held. The petitioner cannot avoid it given the nature of the claims and remedies sought

Reasoning

The petitioner argued he was a state officer under Article 260 so the Act did not apply. The court noted a Permanent Secretary is not among the listed offices in Article 260, that his employer was a constitutional commission under Article 233 and that remedies sought (reinstatement, compensation, terminal dues) are statutory remedies under the Employment Act, so the claim and remedies squarely lie under the Act and not the Constitution.

p. 4
03

Whether the petition is an abuse of process by circumventing the Employment Act through constitutional provisions

Holding

The petition, being an attempt to litigate statute-barred employment claims through the Constitution, should be struck out

Reasoning

Relying on authority that constitutional provisions must not be misused as a general substitute for normal procedures, the court held that where the Employment Act and Labour Relations Act provide adequate remedies, a litigant cannot rely directly on Article 41 without challenging the statute. The preliminary objection accordingly succeeded and the petition was struck out.

p. 4

Legal principles established

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  • Section 90 of the Employment Act is mandatory: claims arising from employment must be filed within three years of the cause of action, and this cannot be circumvented by a constitutional petition
  • Criminal proceedings, conciliation or out-of-court negotiations do not stop limitation time running under section 90
  • Where legislation gives effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution without challenging the legislation or showing its remedies are inadequate

Court orders

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  1. 1.The petition is struck out
  2. 2.Each party shall bear own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 41, 47, 50 and 43 of the Constitution as invoked in the petition; Employment and Labour Relations Court Act, 2011 section 12(4) (court assumed jurisdiction before finding it barred by limitation under section 90 of the Employment Act)

Relief refused

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Declaration that termination of employment was unlawful, unfair and un-procedural; reinstatement and redeployment; compensation for loss of income and alternative remedies

The claims and remedies lie under the Employment Act and the petition was filed outside the three-year limitation period under section 90; the time bar cannot be cured by framing the claim as a constitutional petition

p. 5

Costs

Each party shall bear own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the petition is hereby struck out. Each party shall bear own costs.
p. 5Final orders - striking out and costs
The petitioner cannot avoid the application of section 90 of the Act with regard to time taking into account the position held, the nature of claims made and the remedies sought.
p. 4Mandatory limitation under section 90 applies regardless of office held
time does not stop running from the date the cause of action take effect so as to enlarge time. all claims must be lodged with the court within the provisions of section 90 of the Act.
p. 4Criminal proceedings do not extend limitation time
where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question.
p. 4No direct reliance on the Constitution where statute gives effect to the right
The objections with regard to the suit being time barred cannot be cured through a constitutional petition.
p. 4Constitutional petition cannot cure a limitation bar

Issues in the judgment

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material

The judgment records inconsistent filing dates for the petition - the respondents and the determination section state 24th December 2019 while the petitioner's submissions state 24th December 2016

minor

The judgment inconsistently refers to the constitutional provisions invoked, including a non-existent 'article 27 and 47 of the Constituent' and Article 31(2) of the Sixth Schedule

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Thuita Mwangi v Attorney General & 2 others [2021] KEELRC 1467 (KLR)", Case Analysis (2021). Petition (ELRC, Nairobi) - Ruling on Notice of Preliminary Objection dated 18th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1467/eng@2021-06-10

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