Wambugu & 2 others v Equity Bank & 2 others (Petition 45 of 2019) [2025] KEELRC 1653 (KLR)
The bottom line
#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 petitioners' cause of action is time-barred under section 90 of the Employment Act, 2007
- 2.Whether reliance on constitutional provisions circumvents the statutory limitation period under the Employment Act and Labour Relations Act
- 3.Whether the delay in filing the petition was excusable
- 4.Whether the Court has jurisdiction over the malicious prosecution and special damages claims
- 5.Whether the preliminary objections should be upheld and the petition struck out
Key legal issues
#Whether the petition was time-barred under section 90 of the Employment Act, 2007
Yes. The petitioners were dismissed in February and April 2015 and filed the petition on 14.02.2019, beyond the three-year limitation period.
Section 90 of the Employment Act prescribes a three-year limitation period for causes of action based on the contract of service. The dismissals occurred in early 2015 and the petition was filed on 14.02.2019, well outside three years. The Court found the objection a pure point of law on uncontested facts and upheld it.
Whether the delay could be excused in a constitutional petition
No. The petitioners did not plead and prove facts justifying the delay; the three years had not even lapsed when they were absolved in the criminal case, so no explanation covered the remaining period.
The Court accepted that limitation could potentially be excused in a Bill of Rights petition, but only where material facts justifying delay are pleaded and proved. The petitioners relied on criminal proceedings ending with their acquittal on 20.09.2017, but the limitation period had not expired by then, and no explanation was given for the delay thereafter.
Jurisdiction over the malicious prosecution claim
As a claim founded on the employment relationship it was time-barred; as an independent claim it fell outside the Court's jurisdiction.
The malicious prosecution claim was framed as flowing from the respondents' administrative actions leading to the criminal case. The Court held that insofar as it revolved around the employment relationship it was caught by section 90, and as a freestanding tort claim it did not lie within the ELRC's jurisdiction.
Special damages claim arising from the criminal case
The objection that the claim arises from a criminal case outside the Court's jurisdiction was raised; the petition was disposed of on limitation grounds.
The 2nd and 3rd respondents' preliminary objection included a ground that special damages arising from the criminal case fell outside the Court's jurisdiction. The Court's determination rested primarily on the time-bar ground, with the malicious prosecution claim also addressed on jurisdiction and limitation.
Legal principles established
#- A constitutional petition founded on a contract of service must comply with the three-year limitation period under section 90 of the Employment Act; reliance on constitutional provisions does not circumvent the statute
- A petitioner seeking to excuse delay beyond the limitation period must plead material facts justifying the delay and prove them with due evidence
- A limitation objection based on uncontested fact of lapsed time is a pure point of law properly raised by preliminary objection
Court orders
#- 1.The preliminary objections dated 23.05.2019 and 07.12.2022 are upheld
- 2.The petition is struck out for being time barred
- 3.Each party to bear own costs of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22(1) and 23(1) of the Constitution (invoked by the petitioners for enforcement of Bill of Rights); the Court's employment jurisdiction under the Employment Act, 2007
Relief refused
#The petition in its entirety (declarations and damages for unfair dismissal and malicious prosecution)
The cause of action was time-barred under section 90 of the Employment Act, 2007, and the delay beyond three years from dismissal was inexcusable
Claim for malicious prosecution as an independent claim
It fell outside the Court's jurisdiction, and as based on the employment relationship it was also time-barred
Costs
Each party to bear own costs of the petition
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.
As submitted for the respondents, the cause of action is time barred under section 90 of the Employment Act, 2007. The section prescribe three years’ time of limitation for suits and cause of action based on the contract of service.
Accordingly, the delay in filing the petition beyond three years from the date of the dismissal of each of the petitioners is found inexcusable.
The claim for malicious prosecution as based upon or revolving and evolving from the employment relationship is found time barred and as an independent claim would fall outside the Court’s jurisdiction.
In conclusion the preliminary objections are upheld and the petition struck out for being time barred with orders, each party to bear own costs of the petition.
Issues in the judgment
#The judgment refers to criminal case 'No.23341 of 2014 in Busia Chief Magistrates Court' said to have started 'from around the time of dismissal' (dismissals in 2015), an apparent inconsistency in dates
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambugu & 2 others v Equity Bank & 2 others (Petition 45 of 2019) [2025] KEELRC 1653 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1653/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.