[2021] KEELRC 1630 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

CONSTITUTIONAL PETITION NO. 115 OF 2020

IN THE MATTER OF ENFORCEMENT AND INTERPRETATION OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ARTICLES 2(1) AND (3), 27, 48, 94, 95(3) OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF CONTRAVENTION OF ARTICLES 27 AND 48 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF SECTION 90 OF THE EMPLOYMENT ACT, 2007

BETWEEN

ELIAS KIBATHI.....................................1ST PETITIONER

JAMES DENIS MAINA.........................2ND PETITIONER

VERSUS

THE ATTORNEY GENERAL.....................RESPONDENT

JUDGMENT

1. The petition was filed on 23/7/2020 by the two petitioners whodescribe themselves as adults of sound mind resident in Kenya.

2. The cause of action as set out in the petition is that

“Section 90 of the Employment Act, 2007 is unconstitutional, illegal and void in its entirety or alternatively to the extent that it denies persons a right to seek extension of time where delay in instituting a suit is excusable and to the extent that it seeks to create different period of limitation of time between contracts and contracts of service.”

3. Furthermore, Section 90 of the Employment Act purports to limit theapplicability of Section 4(1) of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya to the extent it relates to contracts of service. It further purports to deny persons from seeking extension of time even where the delay in instituting suit was excusable.

4. The petitioners alleges that Section 90 therefore violates the legalprinciple of legitimate expectation in enacting laws that violates the Constitution.

5. The Petitioners do not specify which specific provision of theConstitution has been violated by Section 90 of the Constitution under “Facts in support of the Petition.”nor does the petition in the final prayer state which provision of the Constitution does the petitioner wish the Court to declare, has been violated by Section 90 of the Employment Act, 2007.

6. The respondent filed a Preliminary Objection to the Petition that theCourt lacks jurisdiction in this matter since only the High Court by dint of Articles 165(3) (d) (i) of the Constitution has jurisdiction to determine the question whether any law is inconsistent with or in contravention of the Constitution.

7. The parties filed submissions in respect of the Preliminary Objectionand the Petition and prayed that the Court render judgment in the matter instead of first dealing with the preliminary objection only.

Determination

8. On the issue of jurisdiction this Court refers to Article 162(2) (a) of theConstitution which provision authorized establishment of Courts of equal status with the high Court to hear and determine disputes relating to employment and Labour relations. This Court was duly established in terms of Employment and Labour Relations Court Act, 2011 as amended in 2014.

9. Under Section 12 of the said Act, this Court has exclusive originaljurisdiction to hear and determine matters relating to employment and Labour relations.

10. Furthermore, Article 165 which establishes the High Court and sets outits original jurisdiction is provided under Article 165 (5) that “The High Court shall not have jurisdiction in respect of matters: -

(a) .....................................

(b) falling within the jurisdiction of the Courts contemplated in Article 162(2).

11. The jurisdiction of Courts established in terms of Article 162(2) wassuccinctly interpreted by the High Court in United States International University (USIU) –vs- Attorney General [2012] eKLR and affirmed by the Court of Appeal in Mugendi –vs- Kenyatta University – Civil Appeal No. 6 of 2012 [2013] eKLR to include interpretation and application of the Constitution of Kenya, 2010 with regard to matters related and or arising from employment and Labour Relations as set out under Article 162(2) as read with Section 12 of the Employment and Labour Relations Court Act.

12. A petition which seeks to have a provision of Employment Act, 2007declared null and void is a matter related to employment and Labour relations. Indeed, the Employment Act, is the key legislation that governs employment and labour relations in Kenya. It is inconceivable to think of a more suited matter for hearing and determination by this Court than the present one. The issue for determination is whether Section 90 violates Constitutional rights of persons seeking redress with regard to contracts of employment upon expiry of the three years limitation period prescribed under Section 90 of the Act.

13. The Court finds without hesitation that it has jurisdiction to interpretthe provisions of the Employment Act, vis a vis, various provisions of the Constitution and pronounce its legality or otherwise.

14. The preliminary objection lacks merit and is dismissed.

15. On the merits of the petition, the only prayer contained in the petitionreads as follows: -

“The petitioners therefore humbly prays that:-

a. A declaration that Section 90 of the Employment Act, 2007 is unconstitutional, illegal and void in its entirety or alternatively to the extent that it denies persons a right to seek extension of time where delay in instituting a suit is excusable and to the extent it seeks to create different period of limitation of time between contracts and contracts of service.”

16. Firstly, this prayer lacks clarity in that it does not disclose whatspecific Articles of the Constitution do Section 90 of Employment Act, violate.

17. Indeed, the body of the petition setting out facts in support of thepetition from paragraphs 24 to 26 do not refer to any Article of the Constitution that Section 90 of the Employment has offended.

18. Be that as it may, it is alleged in general terms that Section 90 of theEmployment Act, violates rights of litigants in that: -

i. It creates a different limitation period for contracts of employment to other contracts.

ii. It denies a litigant the right to seek extension of time where there is delay in instituting a suit based on an employment contract.

19. Section 90 of the Employment Act, 2007 reads:-

“[90] Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.”

20. This is contrasted with Section 4(1) of Limitation of Actions Act, Cap. 22Laws of Kenya which reads:-

“The following actions may not be brought after the end of six years from the date on which the cause of action accrued—

(a) actions founded on contract; (emphasis mine)

(b) actions to enforce a recognizance;

(c) actions to enforce an award;

(d) actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture;

(e) Actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law.

21. Matters of general Limitation of actions are not canvassed in theConstitution of Kenya, 2010. The question of Section 90 or Section 4(1) contradicting a specific provision of the Constitution does not arise.

22. Parliament has the sole authority to legislate and derives that powerunder Section 94 (1) of the Constitution which provides: -

“94(1) The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.’’

23. Both the Employment Act, 2007 and Limitation of Actions Act Cap. 22Laws of Kenya were enacted by Parliament prior to promulgation of the Constitution of Kenya, 2010. That notwithstanding, Article 24(1) in the 2010 Constitution provides that: -

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account all relevant factors including: -

24(2) Despite clause 91) a provision in legislation limiting a right on fundamental freedoms: -

(a)

(b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and

(c ) Shall not limit the right or fundamental freedom so far as to derogate from its core or essential contents”

24. In the part, titled “the Legal foundation of the Petition” the petitionergenerally, refers to various Articles of the Constitution without specifying which particular provision has been contradicted by Article 90 of the Constitution.

25. One may only guess that the petitioners reference to Article 48 whichprovides that every person has the right to access justice, meant that being denied a hearing on the merits on the basis of late filing of a suit negates the right to access to justice. Again, this does not come out at all from the pleadings by the petitioners.

26. This Court again refers to the case of Mugendi (supra) where the Courtof Appeal while explaining the role of pleadings by a petitioner stated: -

“pleadings should clearly and specifically set out facts in order to enable the Court to grasp what the cause of action is and what orders to consider.”

27. In the present case, the petition does not specify what Articles of theConstitution, Section 90 of the Constitution has violated. What is more the petition does not seek a specific finding or orders to the effect that Section 90 of the Employment Act violates a specific Article of the Constitution.

28. To this extent, the petition lacks precision and clarity in material respectsand should fail on this ground alone.

29. The Court however, goes further to examine the contention that Section90 creates a different limitation period to that created under Section 4(1) of Limitation of Actions Act, and if that difference, if indeed exists, violates the Constitution in any way.

30. Section 4(1) in the Limitation of Actions Act, Cap. 22, Laws of Kenyaprovides a six years limitation period for:-

“(a) actions founded on contract.”

31. Whereas Section 90 of the Employment Act, 2007 places a limitationperiod of 3 years for actions founded on contract as opposed to other contracts, it is for stakeholders in the sphere of employment and Labour Relations who necessarily were part and parcel of the process leading to enactment of the Employment Act, 2007 who intended a shorter period within which actions based on employment and Labour relations should be filed. The petitioner has not demonstrated any illegality and or unlawfulness in that respect. The Employment Act, 2007, is a latter Legislation and so the intention of the legislature was clear, and definitive that it intended suits emanating from employment contracts to have a shorter limitation period. It cannot be denied that Parliament has legislative authority to legislate in the manner it did provided that the legislation does not contradict a specific Article of the Constitution. The provision of a shorter period under Section 90 does not contradict the Constitution and does not become unlawful simply because it provides a shorter period for specific contract.

32. With regard to the issue of Extension of time, part III of the Limitation ofActions Act provides for:-

“Extension of periods of limitation.”based on disability, acknowledgment and part payment; fraud, mistake, and ignorance of material facts, upon application for leave of Court to enlarge time upon which the suit may be filed out of time.’’

33. The provision of Section 90 does not specifically refer to part III ofLimitation of Actions Act, Cap. 22 Laws of Kenya and does not state expressly that enlargement of time, if sought on sound grounds may not be extended. The petitioner has not therefore established any unconstitutionality, illegality or unlawfulness in this regard.

34. Accordingly, the petition lacks merit in its entirety and the Courtdismisses the same with no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF JUNE, 2021

MATHEWS N. NDUMA

JUDGE

ORDER

In view of the declaration of measures restricting court of operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act (chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.

MATHEWS N. NDUMA

JUDGE

Appearances

Mr. Kibathi for Petitioners

Mr. Odukenya for Respondents

Ekale – Court clerk.