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ELRCDismissedPetition dated 20 May 2024

Agogo v County Secretary County Assembly of Taita Taveta & 2 others (Petition E015 of 2024) [2025] KEELRC 1234 (KLR)

Employment and Labour Relations Court
30 April 2025
958 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The Employment Court in Mombasa dismissed a worker's claim of over Ksh. 423,000 because it was filed more than three years late and in the wrong form.

What this practically means

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Executive summary

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The 1st and 2nd respondents filed a notice of preliminary objection dated 6 February 2025 against the petitioner's petition dated 20 May 2024, contending that the petition offended section 90 of the Employment Act, was time-barred, should have been brought by Memorandum of Claim, and was a nullity depriving the court of jurisdiction. The court framed four issues: compliance with section 90 (now section 89), propriety of the petition, jurisdiction, and costs. On the facts, the petitioner alleged he was employed on permanent and pensionable terms; his name was deleted from the payroll on 30 April 2020, two months before his scheduled exit on 1 July 2020, causing loss of Ksh. 423,726 and alleged violation of Article 41 rights to fair labour practices. The court, relying on Sumayya Athmani Hassan and Munga, held that Article 41 rights are elaborated in the Employment Act and Labour Relations Act and that a party alleging constitutional violation may raise such issues in a Memorandum of Claim without resort to a constitutional petition; the petition was therefore improper. It further held that the cause of action arose on 30 April 2020 and the three-year limitation under section 90 expired on 30 April 2023, while the petition was filed on 5 November 2024; following Thuita Mwangi, the improper petition route could not cure the time bar. A claim filed out of time denied the court jurisdiction and discretion to extend time. The petition was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the petition offends the provisions of section 90 [now section 89] of the Employment Act
  2. 2.Is this a proper petition?
  3. 3.Whether the court has jurisdiction to determine the petition
  4. 4.Who should pay the costs?

Key legal issues

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01

Whether the petition was a proper mode of bringing the employment claim

Holding

Not a proper petition; the claims were employment dues claimable by Memorandum of Claim

Reasoning

The petitioner claimed Ksh. 423,726 and alleged violation of Article 41. The court, following Athmani Hassan and Munga, held that Article 41 rights are elaborated in the Employment Act and Labour Relations Act, and the ELRC Rules permit constitutional allegations to be raised in a Memorandum of Claim. Invoking the petition route was unnecessary since no breach of law beyond statutory protection was alleged.

p. 2
02

Whether the claim was time-barred under section 90 of the Employment Act

Holding

Yes; cause of action arose 30 April 2020 and the claim was filed 5 November 2024, well beyond three years

Reasoning

Section 90 requires employment claims within three years of the cause of action. The petitioner should have filed by 30 April 2023. Following Thuita Mwangi, filing a petition rather than a Memorandum of Claim cannot cure the time bar. The court thus lost jurisdiction and discretion to extend time.

p. 3
03

Whether the court had jurisdiction to determine the petition

Holding

No; the time-barred and improperly constituted claim removed jurisdiction

Reasoning

Because the claim was filed outside the statutory limitation period and in improper form, the court held jurisdiction was ousted and it could not entertain the petition, invoking the principle that a court without jurisdiction must down its tools.

p. 3

Legal principles established

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  • Employment rights under Article 41 elaborated in statute should be pursued by Memorandum of Claim, not constitutional petition, absent breach of law beyond statutory protection
  • A claim filed out of time under section 90 of the Employment Act deprives the court of jurisdiction and discretion to extend time

Court orders

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  1. 1.The petition is dismissed with costs to the respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the ELRC (Procedure) Rules; objections under section 90 of the Employment Act

Relief refused

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Entire petition, including claim for Ksh. 423,726 and alleged violation of Article 41 rights

Petition was improper and filed out of time, depriving the court of jurisdiction

p. 3

Costs

Costs to the respondents

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.

A party seeking to invoke these rights does not need to go the constitutional petition route. By filing a Memorandum of Claim, such a party can be heard on their issue.
p. 2proper procedure for Article 41 claims
Under section 90 of the Employment Act, a claim seeking to assert employment and labour relations claims must be addressed within 3 years from the date the cause of action arose.
p. 3limitation period
A claim filed out of time denies the court jurisdiction to hear and determine it. The court is denied the discretion to extend time to hear a claim out of time.
p. 3jurisdiction and limitation
Without jurisdiction, the court must put down its tools. The petition is fatally defective and hence dismissed with costs to the respondents.
p. 3disposition

Issues in the judgment

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minor

Judgment text contains a broken/duplicated passage in paragraph 10 regarding the time bar

minor

Typos in original ('ofiends' for 'offends', 'ofice' for 'office')

material

Petitioner and respondents are not named anywhere in the judgment text provided; parties cannot be identified by name

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Agogo v County Secretary County Assembly of Taita Taveta & 2 others (Petition E015 of 2024) [2025] KEELRC 1234 (KLR)", Case Analysis (2025). Petition dated 20 May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1234/eng@2025-04-30

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