[2023] KEELRC 136 (KLR)

Barasa v Kenya Private Sector Alliance (Cause E316 of 2022) [2023] KEELRC 136 (KLR) (26 January 2023) (Ruling)

Neutral citation: [2023] KEELRC 136 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E316 of 2022

BOM Manani, J

January 26, 2023

Between

Teresa Barasa

Claimant

and

Kenya Private Sector Alliance

Respondent

Ruling

1. This is a Claim for compensation for unfair termination. Through it, the Claimant asserts that the Respondent made it impossible for her to continue in employment owing to the difficult work environment that the Respondent subjected her to. As a result, the Claimant states that she was forced to resign from employment. It is her contention that given the circumstances that informed her decision to resign, she was in effect constructively dismissed from employment. She prays that the court issues a declaration in this regard.

2. Proceeding on this premise, the Claimant prays for several other reliefs including: compensation for the balance of her contract period; one month’s salary in lieu of notice; Certificate of Service; and costs of the case.

3. The Respondent has opposed the claim. In addition to the several grounds of defense pleaded, the Respondent contends that the Claimant voluntarily resigned from employment. Besides, the Respondent contends that the claim is allegedly time barred, without merit and should be dismissed with costs.

Preliminary Objection 4. Accompanying the defense is a Notice of Preliminary Objection by the Respondent dated July 18, 2022. Ground one of the preliminary objection is premised on section 90 of the Employment Act. It is contended by the Respondent that the claim is barred by this provision of statute.

5. Concomitant with the aforesaid ground of objection, the Respondent has raised two other grounds of objection which in my view are offshoots of and ancillary to the first ground. These are: that the claim is frivolous and an abuse of the court process; and the claim is incompetent and incurably defective. That the suit is thus a nullity from inception.

6. The premise of the objection is straight forward. The Respondent points out that the Claimant resigned from employment on April 18, 2019. That the current claim was filed on May 17, 2022 more than three years from the date of the Claimant’s resignation. The filing was therefore in contravention of the express requirement of section 90 of the Employment Act which requires that such claims be filed within three years of the cause of action arising.

7. According to the Respondent, in so far as the claim was filed outside the three year capping, it is barred by the law on limitation as set out under section 90 of the Employment Act. The suit is therefore an abuse of the court process and a nullity from inception. And this being the case, the court cannot assume jurisdiction over the matter.

8. The Claimant has responded to the preliminary objection asserting that the claim is saved by the proviso to section 90 of the Employment Act. This proviso permits the filing of claims involving continuing injury or damage within twelve months of the injury or damage ceasing. In the Claimant’s view, the injuries she allegedly suffered following an accident whilst on duty constitute a continuing injury which brings her within the purview of the latter clause on limitation under section 90 of the Employment Act.

9. I agree with the Claimant that a preliminary objection must be premised on a pure point of law. Indeed, this is what the decision in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors [1969] EA 696 quoted by the Claimant provides.According to the Mukisa case (supra), a preliminary objection ought to be raised only on the assumption that the facts that are pleaded are not contested by either of the parties to the dispute. In the case before me, the facts that provide the foundation of the preliminary objection are really not in contest. Both parties agree that the Claimant lost employment when she tendered her resignation on April 18, 2019. Both parties do not contest the fact that the Claimant filed the current suit on May 17, 2022 more than three years after she had resigned on April 18, 2019. Both parties agree that the suit is founded on the fact of separation of the parties that occurred on April 18, 2019.

10. The other requirement for the raising of a valid preliminary objection is that the point of law must be self evident from the pleadings as filed. It should not require elaborate arguments to discover it. It should not require oral or affidavit evidence to fathom. Finally, it must be a point which, if successfully urged, has the potential of disposing off the whole suit.

11. The Mukisa Biscuits case (supra) again helpfully gives us examples of what would comprise a point of law. These include: objections on jurisdiction and limitation of time; and a requirement in a contract that parties submit disputes from the contract to arbitration.

12. What the Respondent raises here meets all the above requirements. First, it is a point of law based on a plea of limitation of actions.

13. Second, the matter is self evident from the pleadings as filed and requires no evidence to fathom. At paragraph 11 of the Memorandum of Claim, the Claimant has pleaded that she was forced to resign from employment through her letter dated April 18, 2019. On the other hand, the court stamp on the Memorandum of Claim shows that the document was received at the court’s registry on May 17, 2022. It is these two dates that are juxtaposed against the requirements of section 90 of the Employment Act to draw the conclusion that the suit was filed outside the three year period and therefore outside the time appointed by statute.

14. Third, if the Respondent is able to demonstrate that the suit is time barred, the action will collapse. In effect, the preliminary objection has the potency of closing the matter.

15. The critical thing in the dispute is to determine when the cause of action arose. This court has had occasion to grapple with this question in the case of Vipingo Ridge Limited v Swalehe Ngonge Mpitta [2022] eKLR. As was said in the case, a cause of action is the ‘’incident (act or omission) which vests in an individual the right to seek legal redress. [It is]…the ‘’factual situation that entitles one person to obtain a remedy in court from another person.’’

16. In the current suit, I have no doubt in my mind that the reason for the Claimant’s action against the Respondent is what she describes as her forced separation from the Respondent through her resignation on April 18, 2019. Although she resigned from employment, the Claimant asserts that this was involuntary and hence constituted constructive termination. Consequently, the cause of action (the termination of the contract of employment) arose on April 18, 2019.

17. It is perhaps worth mentioning that a resignation is one of the various forms of termination of a contract of employment. It takes effect on the date the employee indicates that it should. Usually and unless the contrary is stated in the letter, a resignation takes effect immediately it is tendered to the employer. Its efficacy does not depend on acceptance of the communication by the employer (see Jonathan Ciano v Uchumi Supermarkets Limited [2022] eKLR).

18. Consequently, termination of the contract of employment between the Claimant and the Respondent took effect on April 18, 2019, the date the Claimant issued the Respondent with her resignation. It is noteworthy from the said letter that the Claimant stated that she was resigning with immediate effect. Therefore, the cause of action giving rise to this suit accrued on that date.

19. The Claimant argues that her case is one of a continuing injury and can be filed within twelve months of cessation of the injury. I do not agree. Her cause of action is plainly one of termination on account of constructive dismissal which is said to have occurred on April 18, 2019. If she desired to challenge the termination, she had three years to do so in terms of section 90 of the Employment Act. The Claimant’s suit coming on May 17, 2022 was about one month out of time. It is therefore time barred.

20. I do not agree with the Claimant’s views that a preliminary objection cannot be founded on several grounds of objection as framed by the Respondent in its Notice of Preliminary Objection. Nothing in law suggests what the Claimant postulates above. In any event, what I understand the Respondent to be saying is that if the suit is time barred, it necessarily follows that it is bad in law and therefore null and void from inception. Indeed, it amounts to abuse of the court process for one to institute action which is obviously statute barred.

21. The Claimant suggests that section 90 of the Employment Act is not cast in stone. By this, the Claimant suggests that the court can consider the factors she has raised to permit her to litigate outside the time that is prescribed under the section. I do not agree. Several decisions have had occasion to consider this argument. For the moment, the court has consistently held that the time set under section 90 of the Employment Act cannot be extended (see Joseph Sebastian Ringo v Kenya Railways Corporation [2015] eKLR, Kenya Hotels & Allied Workers Union v Julian’s Centre Ack[2019]eKLR and Samson Wanyoike Kimani v Bliss Flora Limited [2018] eKLR). Unless a contrary view is expressed by a superior court, I respectfully agree with my colleagues on this point.

22. The Claimant also argues that the claim is not just based on the Employment Act. It is also premised on the law of tort and the Constitution. Therefore, the court should not restrict itself to section 90 of the Employment Act in dealing with the question of limitation. The issue must be analyzed in the context of the various legislative frameworks mentioned.

23. First, section 90 of the Employment Act precludes the application of the provisions of the Limitation of Actions Act in determining the question of limitation in respect of causes of action arising from contracts of employment. Therefore, the argument by the Claimant that the claim has an aspect of tort that should bring into play the provisions of the Limitation of Actions Act is of no assistance to her case.

24. On whether the claim raises a constitutional question, it is perhaps important to first point out that the Claimant does not seek any constitutional relief in the claim. This position is clear from the way the reliefs sought are framed in the Memorandum of Claim. The mere fact that a constitutional provision has been cited in the body of the Memorandum of Claim does not make it a constitutional claim.

25. Ordinarily, a party seeking a constitutional relief is by dint of rule 7 of the Employment and Labour Relations Court (Procedure) Rules, 2016 as read with rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2013 required to present before the court a constitutional Petition setting out: the constitutional provisions that have been allegedly infringed; the nature of the alleged infringement; the nature of injury occasioned or likely to be occasioned from the alleged infringement; and the reliefs sought as a result. These are the requirements that the High Court was concerned with in the case of Anarita Karimi Njeru v Republic [1979] eKLR, when it reiterated the need for a person seeking a constitutional remedy to plead with a measure of accuracy the infringement alleged, the provision of the Constitution violated and the constitutional reliefs sought.With extreme respect, I see the raising of the alleged constitutional question by the Claimant as a knee jerk reaction to the preliminary objection that has been raised.

26. In the case of Francis Gathungu v Kenyatta University [2018] eKLR, the court said the following of attempts to constitutionalize every dispute that comes to courts:-‘’We think, with respect, that a willy-nilly attempt at constitutionalizing every common dispute must be discovered, named and rebuffed. This is by no means a manifestation of hostility towards upholding the Bill of Rights or fundamental freedoms but rather a pragmatic approach to adjudication. The courts must be vigilant to confine constitutional determination to disputes that raise and invoke authentic and genuine constitutional questions.’’

27. I reckon that the statement was made with specific reference to the retired Constitution of Kenya. However, I believe that it still speaks to what courts must do even under the current constitutional dispensation.

28. This position is further fortified by the adjudication principle of constitutional avoidance. The principle requires courts to avoid deciding disputes on the basis of provisions of the Constitution if they can be resolved by reference to subsidiary legislation. Reference to the Constitution as the anchor for dispute resolution must as a matter of good sense be a last resort (see KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR).

29. In the case before me, the issues raised can properly be addressed on the basis of the various statutes on employment law in Kenya. It will be improper for the court to permit a party to avoid the effects of the law on limitation by converting what is otherwise an ordinary civil claim into a constitutional dispute. In alluding to this issue, the court in Mwangi Stephen Mureithi v Daniel Toroitich Arap Moi [2011] eKLR had this to say:-‘’It cannot be ruled out that litigants who are certain that their claims would be otherwise stale, may decide to disguise them as Constitutional matters, with a view to escape the available defences of time-bar. It is for the court to ensure that the process is not abused by such litigants who for one reason or another might appear to have slept on their rights for far too long, only to wake up from what would be described as ‘a deep slumber’ after the expiry of what would be the limitation period under other aspects of the law, and decide to shield under the Constitution.’’

30. Finally, it is correct as observed by the Respondent that a dispute on limitation of actions goes to the jurisdiction of the court to entertain the matter that is allegedly time barred (see Anaclet Kalia Musau v Attorney General & 2 Others [2020] eKLR). Having found that the suit is time barred, I find that this court has no jurisdiction to entertain it.

Determinationa)The suit as filed by the Claimant is time barred.b)Accordingly, the court has no jurisdiction to entertain it.c)The case is struck out with costs to the Respondent.

DATED, SIGNED AND DELIVERED ON THE 26TH DAY OF JANUARY, 2023B O M MANANIJUDGEIn the presence of:.......................for the Claimant...........................for the RespondentORDERIn light of the directions issued on July 12, 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B O M MANANI