https://new.kenyalaw.org/akn/ke/judgment/keca/2026/980

Muraguri v Principal Secretary Ministry of Interior & Coordination of National Government & 2 others (Civil Appeal E602 of 2024) [2026] KECA 980 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 980 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E602 of 2024 DK Musinga, P Lilan & JO Okello, JJA May 15, 2026 Between Joseph Gathii Muraguri Appellant and The Principal Secretary Ministry of Interior & Coordination of National Government 1st Respondent The Public Service Commission 2nd Respondent The Hon Attorney General 3rd Respondent (Being an appeal from the ruling and orders of the Employment & Labour Relations Court in Nairobi (Nduma Nderi, J.) dated 6th June, 2023 in ELRC Petition No. E171 of 2023 Employment and Labour Relations Petition E171 of 2023 ) Judgment 1.The main issue in dispute is the ruling of the superior court dated 6th June, 2024 in which the court upheld the respondents’ preliminary objection and struck out the appellant’s petition for lack of jurisdiction. 2.From the record, the appellant filed a petition dated 31st August, 2023 in the ELRC. The petition was filed as a constitutional petition, the facts being, inter alia, that there was violation of the rights of the appellant, which rights are protected under Articles 41, 47, 50 and 236 of the Constitution, when the 2nd respondent unlawfully interdicted the appellant from employment without pay and terminated his employment on 6th August, 1986. That the 1st and 3rd respondents had vacated the illegal interdiction and dismissal after learning that both interdiction and dismissal was unlawful. He further stated that the 2nd respondent by a letter dated 10th November, 2021 confirmed that the appellant stood dismissed from employment as from 6th August, 1986 on account of desertion of duty and should refund the money paid to him after reinstatement by a letter dated 19th February 19th February, 1993. 3.In the petition, the appellant sought a declaration that the appellant be deemed an employee of the 1st and 3rd respondents as from 1982 to January, 2018 and stands reinstated with back pay until the date of attainment of retirement age of 60 years; that all salaries accrued between the period of illegal interdiction and full salary while on study leave be computed and paid in full; that all house allowance withdrawn from the petitioner from October 1986 to March 1988 be reinstated up until March, 2018, being the retirement date for the petitioner; that the appellant be paid all his pensions up to the date of retirement; that an order of mandamus be issued compelling the 1st and 2nd respondents to pay general damages for their illegal actions of violating the petitioner’s rights; and that special damages incurred by the petitioner during studies in the U.K for master’s degree, including air tickets, accommodation and food at an average of 2 million be paid to the appellant; and that costs of the suit be awarded to the appellant. 4.The 2nd respondent (The Public Service Commission), filed a notice of preliminary objection dated 11th October, 2023. The notice of preliminary objection was to the effect that — 1.Under section 90 (now 89) of the Employment Act, 2007, employment and labour relations claims should be filed in the ELRC within a period of three (3) years after the cause of action has arisen; 2.By instituting the instant suit in the year 2023, about 37 years after the cause of action had arisen clearly falls outside the limitation period prescribed under section 90 of the Employment Act, 2007; and 3.In view of grounds 1 and 2 above, the instant petition is not only bad in law for want of jurisdiction but also statutorily time barred. 5.The learned Judge in his ruling of 6th June, 2024, upheld the preliminary objection and struck out the suit for lack of jurisdiction to entertain the same. In his determination, the learned judge held—“From a comprehensive reading of the petition, the cause of action in this matter arose on 6th August, 1986, when the claimant was dismissed from employment for absconding work. Indeed, the main relief sought is payment of full salary from 6th August, 1986 to retirement date in March, 2018 less amount received after reinstatement on 19th February, 1993.Other reliefs sought include award of general, punitive and special damages and pension for 36 years of service. All the above reliefs arise from disputes that arose more than three years from the date the petition was filed in the year 2023.Indeed, this is a mundane claim for terminal benefits and compensation arising from matters that arose while the petitioner worked for the respondents and upon being dismissed from service about 37 years from the date the cause of action arose.The filing of the petition is a ruse meant to circumvent the stark reality in this matter, that it is indeed a claim arising out of an employment contract and the suit is long time barred firstly by dint of section 4(1) of the limitation of actions Act Cap 22 laws of Kenya, having been filed more than six years from the date the dismissal took place and also in terms of section 90 of the Employment Act, 2007, having been filed more than three years from the date the petitioner retired.” 6.Aggrieved by that decision, the appellant lodged the instant appeal before this Court. He filed his notice of appeal dated 14th June, 2024. He also filed his memorandum of appeal dated 5th August, 2024 that raised seven grounds disputing the findings of the superior court as follows:a.that the learned judge erred in his ruling of 6/6/2024 which upheld the respondents’ preliminary objection dated 11/10/2023 failed to appreciate sufficiently or at all that the gist of respondents’ preliminary objection was an importation of provisions of Employment Act into petitioner’s petition which was principally on constitutional violations of his rights under the enumerated provisions of the Constitution of Kenya, 2010;b.that the learned judge erred in law in failing to appreciate sufficiently or at all that the petitioner has a right to come to Court to seek redress against mischiefs perpetrated by his employer and the court was to hear petition on merits, make informed decision on the evidence and law but not to shut doors of justice on arrival to the corridors of justice;c.that the learned judge erred in failing to appreciate that pleadings and evidence of parties are the tenets of law and not procedural technicalities curable under Article 159 of the Constitution of Kenya, 2010;d.that the learned judge erred in failing to appreciate that the petitioner’s last communication with his employer was by a letter dated 10/11/2021 and therefore the issue of limitation period does not arise;e.that the learned judge erred in failing to appreciate sufficiently or at all that the petitioner’s dismissal letter dated 6/8/1986 was rescinded by letter dated 19/2/1993 on record, petitioner deemed reinstated and no further disciplinary action and/or any subsequent dismissal took place?;f.that the learned judge erred in failing to appreciate sufficiently or at all that the petitioner’s petition was not only limited to benefits but raises serious legal issues on bad labour practice under Article 41 of the Constitution of Kenya among others and therefore the petition ought to have been allowed to proceed on merits; andg.that the learned judge erred in failing to appreciate sufficiently or at all that in conversion of petitioner’s petition into an employment issue and hence occasioned miscarriage of justice and do urge this appeal is merited and should be allowed in its entirety. 7.The appeal was heard virtually on 10th March, 2026. The appellant appeared in person. Mr. Earnest Kioko appeared for the 1st and 3rd respondents, while Mr. Michael Maurice Ogosso learned counsel appeared for the 2nd respondents. The appellant relied on his submissions dated 2nd December, 2024 and also made oral highlights of the submissions. The 1st and 3rd respondents did not file written submissions and therefore made oral submissions only. The 2nd respondents filed written submissions dated 6th March, 2026 and also made oral highlights of the same. 8.The appellant’s case is that this was a matter of violation of the Constitution and thus a constitutional petition, not a labour matter. He averred that from his petition filed in the Employment & Labour Relations Court, the issues raised were purely constitutional violations of his rights provided under the Bill of Rights including bad labour practice and not under Employment Act, 2007. He thus averred that because the superior court misdirected itself by considering this matter as a labour dispute, he was condemned unheard under disguise of the petition falling under the dictates of the Employment Act, 2007. 9.He further avers that the central issue to determine the cause of action is the last communication between the parties, which was a letter dated 10th November, 2021 and, therefore, the issue of limitation period under section 90 of the Employment Act, 2007 does not arise. He avers that his petition was not founded on the Employment Act and that the learned judge erred by upholding the preliminary objection. He avers that it was the duty of the superior court to hear and determine issues raised in the petition on merit and make an informed decision on facts and evidence tendered by the parties before it. 10.The appellant further averred that the dismissal letter dated 6th August, 1986 was rescinded by the letter dated 19th February, 1993 on record, and that from then, the appellant deemed reinstated and no further disciplinary action or any subsequent dismissal took place. He closes his submissions by stating that he stands not dismissed as no disciplinary action was ever initiated against him before and therefore non allocation of duties and lock out from the workplace by his immediate supervisor on unsubstantiated allegation of being insane was evidence of bad labour practice under Article 41 of the Constitution. He concludes by urging this Court to allow the appeal, and direct that Nairobi ELRC Petition No. E171 of 2023 be heard a fresh by another Judge. 11.The 1st and 3rd respondents did not file written submissions, but learned counsel Mr. Kioko made oral submissions strictly on issues of law. The learned counsel in his oral submissions averred that he agrees with the learned judge for upholding the preliminary objection because the appellant was dismissed from employment on 6th August, 1986. That the appellant was guilty of laches, and that is why he filed the suit over 20 years after his dismissal. He cited the case of Attorney General vs Andrew Maina Githinji & Another [2016] eKLR, where the Court of Appeal while setting aside the judgment of Mungai, J. indicated that a cause of action arises upon receipt of a dismissal letter. He further cited the case of Gabriel Mutava & 2 Others vs The Managing Director of Kenya Ports Authority & Another, where the Court state that where there exists other sufficient and adequate avenues to resolve a dispute, a party ought not to traverse the jurisdiction of the Constitutional court, bringing actions that could very well and effectively be dealt with in other forum. He concludes his submissions by urging us to dismiss the appeal and uphold the ruling of the superior court, with costs to the respondents. 12.The 2nd respondent through Mr. Ogosso learned counsel, filed written submissions dated 6th March, 2026, which he orally highlighted. He urged the Court to uphold the decision of the superior court to the effect that the case before the superior court was lodged out of time, contrary to section 90 (now section 89) of the Employment Act. 13.Learned counsel averred that from the pleadings, the cause of action arose in 1986, about 37 years ago, and the appellant filed the petition in 2023. He invites this Court to look at section 89 of the Employment Act which provides that “notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap 22), 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 case of continuing injury or damage within twelve months next after the cessation thereof.” 14.Learned counsel Mr. Ogosso further submits that the claim by the appellant was way out of time by all standards, irrespective of whether the claim is brought under section 89 of the Employment Act or under the ambit of section 4(1) of the Limitation of Actions Act, Cap 22 as an ordinary claim which gives a limitation period of six years. 15.He invites this Court to consider the case of Rift Valley Railways (Kenya) Ltd vs Hawkins Wagunza Musonye & Another, Malindi Court of Appeal Civil Appeal No. 39 of 2016, where the Court held that where a statute limits time for bringing an action, no court has the power to extend that time, unless the statute itself allows extension of time. 16.The learned counsel concludes his submissions by stating that the appellant’s right to sue having lapsed, he lacked the capacity to bring any cause of action against the respondents and the ELRC was right in striking out his petition. He urges the Court to dismiss the instant appeal and uphold the decision of the superior court. 17.This is a first appeal, therefore, this Court’s mandate as a first appellate court is settled as being re-hearing or retrial of the case, based on the material on record. This duty is well provided for in rule 31(1)(a) of the Court of Appeal Rules (2022), which requires this Court to re-examine both issues of law and fact. However, while this Court has the power to arrive at its own independent decision, we must exercise caution and be slow to overturn a trial court’s findings of fact because we did not have the advantage of seeing or hearing the witnesses. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR, the Court observed thus;“…being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” 18.We must also be guided by the Court of Appeal for East Africa decision in Peters vs Sunday Post Limited [1958] EA page 424, where the court stated that:“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.” 19.Bearing in mind rule 31(1)(a) of the Court of Appeal Rules (2022) and the plethora of authorities in this area, we will only overturn a trial court’s finding if it is shown to be clearly wrong, or if the judge failed to take into account material circumstances, or made a finding that no reasonable tribunal, properly directing itself on the evidence could have made. 20.We have carefully considered the record, the grounds of appeal, the parties’ submissions and the law. We discern two primary issues for determination, that is, whether –a.the learned judge erred by considering this matter as a labour dispute arising from contract of employment instead of a constitutional petition;b.the superior court erred by upholding the preliminary objection and thereby striking out the suit for lack of jurisdiction. 21.We start by considering the first issue, that is, whether this is a constitutional petition or an employment contract. The appellant filed this matter as a constitutional petition, alleging violation of his rights under Articles 41, 47, 50 and 236 of the Constitution. The respondents on the other hand filed a preliminary objection on grounds that this is an employment matter, and that the appellant is circumventing the employment law to hide under the Constitution. A keen look at the petition points to two twin doctrines of constitutional ripeness and constitutional avoidance. These are principles that have guided our courts whenever faced with similar matters. As has been stated before, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the appellant the relief he seeks. A superior court cannot resolve a matter before it from a constitutional viewpoint if there are specific legislations dealing with the matter. A constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the appellant the remedy he seeks. In the instant case, the dispute could have been addressed under the Employment Act. In the case of Sumayya Athmani Hassan vs Paul Masinde Simidi & Another [2019] eKLR the court observed—“It is evident that the petition was hybrid combining violations of various constitutional rights; employment rights under the Employment Act and breach of the Public Officers Ethics Act. However, the underlying complaint was the alleged unlawful interdiction and subsequent dismissal of the 1st respondent by the Corporation and appellant. The specific remedies sought were general damages, terminal benefits and issuance of certificate of service. In determining the petition, the ELRC relied wholly on the provisions of Employment Act.The Article 41 rights are enacted in the Employment Act and Labour Relations Act. The two Acts and the rules made thereunder provide adequate remedy and orderly enforcement mechanisms. The 1st respondent filed a petition directly relying on the provisions of the Constitution for enforcement of contractual rights governed by the Employment Act without seeking a declaration of invalidity of the Employment Act or alleging that the remedies provided therein are inadequate. The petition did not raise any question of the interpretation or application of the Constitution.” 22.We are persuaded that where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. The primary legislation should not be circumvented by seeking to rely on a constitutional provision. In the instant appeal, the Employment Act gives effect to constitutional rights. The appellant in his petition consciously avoided bringing this action under the Employment Act, 2007. 23.Further, a look at the remedies the appellant sought in his petition, including payment of salary from January, 2018 until retirement, all salaries accrued from the date of interdiction, all house allowance from October, 1986 to March, 2018 and his pension, clearly points to a dispute touching on an employment contract. He further seeks general and special damages. These are matters arising from an employment contract and governed squarely by the Employment Act. From the foregoing, it is clear in our minds that the claimant filed the petition after realising that the cause he had was time barred and there was no defence to the delay in filing the cause. 24.On the second issue, whether the superior court erred in upholding the preliminary objection, we do not think so. Having established that this was an employment contract, the cause of action arose when the appellant was dismissed on 6th August, 1986, a decision communicated to him vide a letter dated 21st January, 1988. The cause of action having arisen then and the matter being employment contract, is governed by section 90 of the Employment Act. Section 90 of the Employment Act prescribes the limitation period of three years. 25.The learned Judge in the superior court addressed his mind on this matter and was very succinct. He stated—“The filing of the petition is a ruse meant to circumvent the stark reality in this matter, that it is indeed a claim arising out of an employment contract and the suit is long time barred firstly by dint of section 4(1) of the limitation of actions Act Cap 22 laws of Kenya, having been filed more than six years from the date the dismissal took place and also in terms of section 90 of the Employment Act, 2007, having been filed more than three years from the date the petitioner retired.” 26.We agree with the superior court. This filing was meant to circumvent the legislation enacted to give effect to Article 41 of the Constitution, on the appellant realising that he had slept on his rights. The delay in filing this matter is unexplainable. 27.In view of the conclusions arrived at on each of the issues addressed, we find no reason to interfere with the trial court’s findings. The trial court considered the totally of the material before it and arrived at the correct conclusion that this was a claim arising out of an employment contract and therefore the suit was time barred in terms of section 90 of the Employment Act, 2007. 28.Thus, having considered the record of appeal, the impugned ruling, the parties’ submissions, the highlights by counsel, the authorities cited and the law, we are persuaded that this appeal lacks merit. 29.Consequently, the appeal is dismissed. Each party to bear their own costs of the appeal. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.D. K. MUSINGA, (PRESIDENT)......................... JUDGE OF APPEALPAUL LILAN......................... JUDGE OF APPEALDR. J. O. OKELLO.........................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.