[2023] KEELRC 2613 (KLR)
The court determined that the petition was fundamentally a claim for unlawful and unfair termination of employment, which is governed by the Employment Act, 2007. Section 90 of the Act imposes a strict three-year limitation period for filing such claims. The petitioner's employment was terminated on August 9, 2018,...
Source-derived case information.
- Citation
- [2023] KEELRC 2613 (KLR)
- Parties
- Applicant: Fredrick Kaunda Kiilu; Respondent: Kenya Airports Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition E071 of 2023
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- petition struck out for want of jurisdiction
- Judges
- MN Nduma
- Legal Topics
- Limitation Periods, Unlawful Termination, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Kaunda Kiilu
Applicant
Kenya Airports Authority
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the court has jurisdiction to hear a claim for unlawful termination filed more than three years after the cause of action arose.
- 2 Whether the limitation period under section 90 of the Employment Act, 2007 applies to constitutional petitions based on employment contracts.
Ratio Decidendi
The court determined that the petition was fundamentally a claim for unlawful and unfair termination of employment, which is governed by the Employment Act, 2007. Section 90 of the Act imposes a strict three-year limitation period for filing such claims. The petitioner's employment was terminated on August 9, 2018, but the suit was filed on April 4, 2023, more than four years later. The court held that the statutory limitation period applies regardless of whether the claim is presented as a constitutional petition or a standard employment claim. The court further held that it lacks jurisdiction to extend the limitation period or to entertain claims filed outside the prescribed timeframe....
Court Disposition
petition struck out for want of jurisdiction
Orders
- The petition is struck out for lack of jurisdiction.
- Each party to bear their own costs of the suit.
Full Case Text
Judgment text and source record
25 paragraphs
Kiilu v Kenya Airports Authority (Petition E071 of 2023) [2023] KEELRC 2613 (KLR) (19 October 2023) (Ruling)
Neutral citation: [2023] KEELRC 2613 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Petition E071 of 2023
MN Nduma, J
October 19, 2023
Between
Fredrick Kaunda Kiilu
Claimant
and
Kenya Airports Authority
Respondent
Ruling
1. The petition was filed on 4/4/2023 by the petitioner who on the face of the petition was employed by the respondent in 1979 and worked for the respondent in a position of wireman to electrical inspector and was an electrical technician when his employment was terminated on August 9, 2018 on grounds of negligence of duty.
2. The respondent has raised a preliminary objection that the court lacks jurisdiction to entertain the suit by dint of section 90 of the Employment Act, 2007 which provides that any suit whose cause of action is based on a contract of employment must be filed within three (3) years from the date the cause of action arose, failing which the suit is statutorily barred.
3. Section 90 reads:-“90notwithstanding 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 the case of continuing injury or damage within twelve months next after the cessation thereof.”
4. A careful consideration of the petition as filed leaves the court with no doubt that the suit is a mundane claim for unlawful and unfair termination disguised as a constitutional petition.
5. The cause of action is the termination of employment of the petitioner on August 9, 2018. This suit was filed on 4/4/2023 more than four (4) years from the date the cause of action arose.
6. In Fred Mudave Gogo v G4S Security Services (K) Limited [2014] eKLR the Court observed as follows:-“It cannot be denied that the cause of action herein is based on a contract of employment. The claimant’s employment was terminated on August 8, 2008, a period of over 3 years from the date of filing this claim in the industrial court on the June 5, 2013 and therefore by operation of the law, the claim had already lapsed.”
7. This is the situation in the present case. It does not matter that a suit is brought by way of a memorandum of claim or by way of a Constitution petition provided the dispute constituting the cause of action is clear and unequivocal and is one based on a contract of employment.
8. The court lacks jurisdiction to entertain the suit as was stated in Nicodemus Marani v Timsales Limited – Industrial Cause No 204 of 2014. The Court also lacks jurisdiction to extend the period in which the suit founded on a contract of employment may be filed.
9. As the court’s jurisdiction flows from either the Constitution or legislation or both, as was stated in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited and 2others SC Application No 2 of 2012 [ 2012] eKLR, the court strikes out the matter for lack of jurisdiction to hear and determine the same.
10. Each party to bear their own costs of the suit.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 19TH DAY OF OCTOBER, 2023. Mathews N. NdumaJudgeAppearanceMr. Masese for Respondent/ObjectorMr. Muteti for PetitionerEkale: Court Assistant