[2019] KEELRC 1828 (KLR)
The court held that the petition was time-barred and incompetent. The alleged violations arose in 1990, long before the promulgation of the Constitution of Kenya 2010. The court found that the relevant constitutional provisions cited by the petitioner do not have retrospective effect and cannot be applied to...
Source-derived case information.
- Citation
- [2019] KEELRC 1828 (KLR)
- Parties
- Petitioner: Crispus Mavuthi Kathuma; Respondent: Inspector General; Respondent: National Police Service Commission; Respondent: Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition 69 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- petition struck out
- Judges
- MSA Makhandia
- Legal Topics
- Limitation of Actions, Retrospective Application of Constitution, Unfair Dismissal, Fair Administrative Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Crispus Mavuthi Kathuma
Petitioner
Inspector General
Respondent
National Police Service Commission
Respondent
Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the petition is time-barred under the Limitation of Actions Act and/or Employment Act.
- 2 Whether the Constitution of Kenya 2010 can be applied retrospectively to employment disputes arising before its promulgation.
- 3 Whether the petitioner's rights under Articles 27, 47, 48, and 50 of the Constitution were violated by the dismissal in 1990.
Ratio Decidendi
The court held that the petition was time-barred and incompetent. The alleged violations arose in 1990, long before the promulgation of the Constitution of Kenya 2010. The court found that the relevant constitutional provisions cited by the petitioner do not have retrospective effect and cannot be applied to employment disputes that arose before the Constitution came into force. Further, the statutory limitation periods under the Limitation of Actions Act and the Employment Act, 2007, either did not apply or were not relevant to the petitioner's claim. The petitioner was found to be circumventing the law of limitation by bringing the claim as a constitutional petition. Consequently, the...
Court Disposition
petition struck out
Orders
- The preliminary objection is upheld.
- The petition is struck out.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
PETITION NO. 69 OF 2017
IN THE MATTER OF: ARTICLES 22(1), 23(1), 27(1), 47(1), 47(2), 48 AND 50(1) AND 50(2)(q)
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER SECTION 4(1) & (2) OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
BETWEEN
CRISPUS MAVUTHI KATHUMA..................................................PETITIONER
AND
INSPECTOR GENERAL.........................................................1st RESPONDENT
NATIONAL POLICE SERVICE COMMISSION...............2nd RESPONDENT
ATTORNEY GENERAL........................................................3rd RESPONDENT
RULING
1. Crispus Mavuthi Kathuma (Petitioner) was dismissed from the Kenya Police Force on 17 December 1990.
2. On 3 August 2017, the Petitioner instituted the instant Petition alleging that by dismissing him, the Respondents had violated his rights to equality before the law (Article 27); fair administrative action (Article 47); access to justice (Article 48) and fair hearing (Article 50).
3. The 3rd Respondent filed a Notice of Appointment to act for the Inspector General of Police on 5 October 2017 and on the same day filed a Notice of Preliminary Objection in the following terms
1. THAT the suit is time barred and offends Section 4(1)(a) of the Limitation of Actions Act and alternatively section 90 of the Employment Act.
2. THAT the Petitioner has not sought and obtained leave to file this suit out of time contrary to section 27 & 28 of the Limitation of Actions Act.
3. THAT the Petitioner is circumventing the Employment Act and the Labour Relations Act by relying on the constitutional provisions having realised the matter is statute barred under the parent Acts which give effect to constitutional rights.
4. THAT the Petition offends Article 22(1) of the Constitution and the locus classicus decision in Mumo Matemu and Annarita Karimi Njeru.
5. THAT the suit is an abuse of the court process. 6. THAT the suit is incompetent and ought to be struck out with costs.
4. The Petitioner filed grounds of opposition to the Preliminary Objection on 18 February 2019, and the Court took oral arguments on 19 February 2019.
5. Because the alleged violations accrued before the commencement of the Employment Act, 2007, section 90 thereof has no relevance to the present proceedings.
6. Sections 27 and 28 of the Limitation of Actions Act are also of no relevance to the objection as they relate and apply to causes of action anchored on tort, and not contract.
7. The Petitioner has wholly relied on the Constitution of Kenya 2010 which was not in place in 1990.
8. The Supreme Court had occasion to pronounce itself on the retrospective application of the Constitution 2010 in Samuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd & 2 Others(2012) eKLR and stated
However,in interpreting the Constitution to determine whether it permits retrospective application of any of its provision, a Court of law must pay due regard to the language of the Constitution. If the words used in a particular provision are forward-looking, and do not contain even a whiff of retrospectivity, the court ought not to import it into the language of the Constitution. Such caution is still more necessary if the importation of retrospectivity would have the effect of divesting an individual of their rights legitimately accrued before the commencement of the Constitution.
9. In the view of this Court, the provisions of the Constitution the Petitioner alleged to have been violated do not suggest retrospectivity of application within the context of the facts obtaining here.
10. At the time of the dismissal of the Petitioner, both statutory law, common law and contractual law/agreement formed the fulcrum upon which employment disputes were resolved, and therefore the Petitioner was attempting to circumvent the law of limitation by following the Constitutional Petition route.
11. The Court in effect upholds the preliminary objection and strikes out the Petition. No order as to costs.
Delivered, dated and signed in Nairobi on this 22nd day of March 2019.
Radido Stephen
Judge
Appearances
For Petitioner Mr. Walela instructed by S.S. Malonza & Co. Advocates
For 1st and 3rd Respondents Ms. Shitubi, State Counsel, Office of the Attorney General
2nd Respondent did not participate
Court Assistant Lindsey