Simeon A. Oloo & 19 others v Lake Basin Development Authority (Petition E049 of 2021) [2022] KEELRC 87 (KLR)
The bottom line
#Kenya's Employment Court dismissed a retrenchment benefits petition because employment disputes belong under the Employment Act, and claims filed after three years are time-barred.
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 Petition offends Order 1 Rule 13(1) and (2) of the Civil Procedure Rules for want of written authority for the 1st Petitioner to plead for the Co-Petitioners
- 2.Whether the Petition fails to meet the precision threshold in Anarita Karimi Njeru v Republic and Mumo Matemu
- 3.Whether the Petition is res judicata in light of earlier suits (Kisumu HCCC No. 156 of 2004 and Kisumu CMCC No. 122 of 2007)
- 4.Whether the Petition is statute-barred under the Limitation of Actions Act / Section 90 of the Employment Act, 2007
Key legal issues
#Applicability of Civil Procedure Rules to constitutional petitions and effect of missing written authority
The Civil Procedure Rules apply to constitutional petitions, but under Article 159(2)(d) the absence of written authority is not fatal; this ground of the objection failed.
The court accepted authority holding that the Civil Procedure Rules apply to constitutional petitions, including Meme vs Republic and Kitty Njiru. However, it balanced this against Article 159(2)(d) on procedural technicalities and Rule 5(a) of the Mutunga Rules on the overriding objective, holding that the Rules serve to bridge gaps and pursue justice rather than defeat suits.
Whether the petition met the Anarita Karimi Njeru precision threshold
The petition did not disclose a constitutional cause of action; the principle of constitutional avoidance applied because the claims were employment matters governed by the Employment Act.
The only constitutional provision invoked was Article 40, in respect of awards in earlier suits. The court found all issues were employment issues resolvable under the Employment Act, and relied on the New Clicks and Communications Commission of Kenya decisions on constitutional avoidance, holding legislation enacted to give effect to constitutional rights ought not to be bypassed.
Res judicata
The petition was res judicata: the same parties litigated the same issues under the same title and these were finally determined in the former suit.
The Petitioners' own pleadings admitted that the judgments in Kisumu HCCC No. 156 of 2004 and the awards sought were the same as those prayed for in their earlier original plaints. Applying the Accredo Ltd vs Stefano test, the court found the former suit was between the same parties, on the same subject matter, and heard and finally determined.
Limitation of time
The petition was statute-barred under Section 90 of the Employment Act, 2007, the three-year period having expired whether counted from retrenchment or from the 2012 court decision.
The Petitioners were retrenched between 2002 and 2007; the decision on the retirement package was delivered on 16th May, 2012; the petition was filed on 13th August, 2021. Either way the claim was far outside the three-year limitation period for employment contracts, and the argument that time runs from remedy of the transgression was rejected.
Legal principles established
#- The Civil Procedure Rules and the Civil Procedure Act are applicable to Constitutional petitions
- Under Article 159(2)(d), absence of written authority under Order 1 Rule 13 is not fatal to a constitutional petition
- The principle of constitutional avoidance bars founding a cause of action directly on the Constitution where legislation such as the Employment Act provides remedies
- Time in employment claims starts running on the date of termination and runs for three years under Section 90 of the Employment Act, 2007
Court orders
#- 1.The Respondent's Preliminary Objection dated 11th February, 2022 is upheld
- 2.The petition is dismissed with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original constitutional petition jurisdiction under Article 22 of the Constitution, with reference to Article 165 supervisory jurisdiction argued by the Petitioners
Relief refused
#Petitioners' prayer that the Preliminary Objection be dismissed with costs
The Preliminary Objection succeeded on the Anarita Karimi precision ground and the petition was further found res judicata and statute-barred
Costs
No orders as to costs
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.
In whole the Respondent's Preliminary Objection dated 11th February, 2022, is upheld, with the result that the petition herein is dismissed with no orders as to costs.
Consequently, I hold that the absence of the written authority is not fatal to the petition herein, and this ground of the Preliminary Objection fails.
I find and hold that the petition herein does not disclose a cause of action anchored on the Constitution. Consequently, the Preliminary Objection succeeds on this ground.
The petitioners slept on their rights and as it were, they just have to continue sleeping. Litigation must finally come to the end in this matter.
I find the Petition Statute barred by Section 90 of the Employment Act, 2007.
Issues in the judgment
#The judgment states it will address 'each of the four grounds subject of the objection' although only three grounds were listed in the preliminary objection
The court cites the New Clicks decision with Ndolo, J. stated at paragraphs 437, an attribution inconsistent with the South African Constitutional Court citation given
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Union of Domestic Hotels Educational Institutions Hospitals and Allied (KUDHEIHA) Workers v Kathonzweni High School (Cause 84 of 2015) [2023] KEELRC 2555 (KLR)[2023] KEELRC 2555 (KLR)19 Oct 2023applied
Cite this brief
#Cite this brief
Caselaw, "Simeon A. Oloo & 19 others v Lake Basin Development Authority (Petition E049 of 2021) [2022] KEELRC 87 (KLR)", Case Analysis (2022). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/87/eng@2022-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.