Bwonda & 11 Others v Lake Basin Development Authority (Petition E050 of 2021) [2022] KEELRC 1523 (KLR)
The bottom line
#Kenya's Employment Court dismissed a pension petition because it was filed years too late, repeated an already-decided case, and bypassed the Employment Act.
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
- 2.Whether the Petition meets the precision threshold in Anarita Karimi Njeru v Republic
- 3.Whether the Petition is res judicata
- 4.Whether the Petition is barred by limitation of time
Key legal issues
#Applicability of Civil Procedure Rules to constitutional petitions and effect of absence of written authority
The Rules apply to constitutional petitions, but the absence of written authority under Order 1 Rule 13 is not fatal given Article 159(2)(d)
The court held that the Civil Procedure Rules and Act apply to constitutional petitions, following Kitty Njiru, Meme vs Republic and Karl Wehner Claasen. However, Article 159(2)(d) requires justice without undue regard to procedural technicalities, and Rule 5(a) of the Mutunga Rules requires just determination. The absence of the 1st Petitioner's written authority from co-petitioners was therefore not fatal, and this ground of the objection failed.
Whether the petition met the Anarita Karimi Njeru precision threshold / doctrine of constitutional avoidance
The petition did not disclose a constitutional cause of action; employment issues should be resolved under the Employment Act
The only provision invoked was Article 40 concerning court awards as property. The court found the issues were employment matters resolvable under the Employment Act. Relying on the New Clicks decision and Communications Commission of Kenya vs Royal Media Services on constitutional avoidance, the court held a litigant should not bypass legislation enacted to give effect to constitutional rights. The objection succeeded on this ground.
Res judicata
The petition was res judicata, the same issues having been heard and finally determined in the former suit
The Petitioners' own pleadings acknowledged the judgments of Justices Warsame, Nambuye and Chemitei in Kisumu HCCC No. 156 of 2004 and an identical prayer in earlier suits. Applying the Accredo Ltd criteria - same issue directly in issue, same parties, same title, heard and finally determined - the court found the petition res judicata.
Limitation of actions
The petition was statute-barred under Section 90 of the Employment Act, 2007 (three years from termination)
The claim concerned retrenchment and terminal benefits arising from an employment contract, governed by Section 90 of the Employment Act, 2007, which imposes a three-year limitation, not six or twelve years as submitted. Time runs from termination. The Petitioners were retrenched between 2002 and 2007, and the relevant decision was delivered on 16th May 2012; the petition, filed 13th August 2021, was grossly out of time.
Legal principles established
#- The Civil Procedure Rules and Civil Procedure Act are applicable to constitutional petitions
- Where legislation gives effect to a constitutional right, a litigant should found the cause of action on that legislation, not directly on the Constitution (doctrine of avoidance)
- In employment matters, limitation under Section 90 of the Employment Act, 2007 is three years and time runs from the date of termination
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; court also noted supervisory jurisdiction under Article 165(6) was invoked by the Petitioners
Relief refused
#The petition (and the Petitioners' prayer that the Preliminary Objection be dismissed with costs)
The objection succeeded on the Anarita Karimi precision ground, res judicata and limitation; the petition disclosed no constitutional cause of action and was statute-barred
Costs
No orders as to costs - petition dismissed with 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.
I find and hold that the petition herein is res judicata.
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.
Issues in the judgment
#Recurring typographical rendering errors in the text (e.g. 'ofiends' for 'offends', 'efiect' for 'effect', 'filled' for 'filed')
The court states it will address 'each of the four grounds' while the objection as framed lists three grounds
Incorrect reference to 'Section 90 of the Employment, 2007' (statute name incomplete)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bwonda & 11 Others v Lake Basin Development Authority (Petition E050 of 2021) [2022] KEELRC 1523 (KLR)", Case Analysis (2022). Petition dated 13th August 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1523/eng@2022-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.