https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1332

Mirera v Attorney General & 5 others (Petition E007 of 2025) [2026] KEELRC 1332 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1332 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Petition E007 of 2025 SC Rutto, J May 15, 2026 Between Paul Waci Mirera Petitioner and The Principal Attorney General 1st Respondent Principal Secretary, Ministry Of Health 2nd Respondent Principal Secretary, Ministry Of Finance 3rd Respondent Public Service Commission 4th Respondent Commission On Administrative Justice 5th Respondent Director/Secretary Pensions 6th Respondent Ruling 1.What comes up for determination is the 4th respondent’s notice of preliminary objection dated 18th December 2025, premised on the following grounds:i.That the petition is time-barred and offends mandatory provisions of Section 4(1)(a) of the Limitation of Actions Act.ii.That the petitioner is circumventing the Labour Relations Act by relying on constitutional provisions having realised that the matter is statute-barred under the parent Act which gives effect to the constitutional rights.iii.That the Constitution 2010 is not applicable to the Petitioner’s case/petition, considering he was dismissed from service before the promulgation of the Constitution.iv.That the Petitioner never sought for leave to file the Petition out of time, as labour rights are not absolute.v.That the suit is an abuse of the court process.vi.That the suit is incompetent and ought to be struck out with costs. Submissions 2.The preliminary objection was disposed of by way of written submissions. Only the 4th respondent filed written submissions, which the court has duly considered. Analysis and Determination 3.It is apparent to the court that the sole issue for determination is whether the instant petition is statute-barred. 4.The 4th respondent has submitted that the petitioner was dismissed from service with effect from 26th April 2000. Conversely, the petitioner contends in his petition that he was never served with a letter terminating his employment. 5.The record bears that the petitioner was issued with a letter of interdiction dated 7th May 1997, in which he was cited for desertion of duty from around November 1992. He was consequently required to show cause within 21 days why disciplinary action should not be taken against him. The petitioner responded to the interdiction through his letter dated 28th May 1997. 6.Notably, the record does not contain a termination letter issued to the petitioner. Be that as it may, it is evident that the petitioner escalated the matter to the 4th respondent through his letter dated 12th November 2013 which was also copied to the 5th respondent. 7.The record further bears that through a letter dated 14th November 2014, the Petitioner was informed by the 2nd respondent that his application for review concerning his dismissal from service had been declined. Thereafter, by a letter dated 12th February 2015, the 4th respondent informed the petitioner that his file had been closed. 8.Subsequently, the petitioner escalated the matter to the 5th respondent through his letter dated 18th November 2015. In a letter dated 30th October 2019, the petitioner was notified that his case had been reviewed and disallowed. 9.Dissatisfied with that decision, the petitioner lodged an appeal, and through a letter dated 3rd February 2021, the 5th respondent communicated its decision declining to reopen the matter. 10.Following the foregoing sequence of events, the Petitioner instituted the present suit on 22nd April 2025. 11.Under section 89 of the Employment Act, any claim arising from a contract of service must be filed within 3 years from the date the cause of action accrued. 12.The effect of the foregoing provision is that this court lacks jurisdiction to entertain claims founded on the Employment Act or on a contract of service, such as the present one, where such claims are brought more than 3 years after the cause of action accrued. 13.Although the petitioner contends that he was never issued with a termination letter, the correspondence dated 14th November 2014 from the 2nd respondent clearly informed him that his application for review regarding his dismissal from service had been rejected. This position was subsequently reiterated through various correspondence from the 4th and 5th respondents. 14.Assuming the petitioner’s assertion that he was never issued with a letter of termination was true, a strict interpretation of section 89 of the Employment Act leads to the conclusion that the cause of action accrued on 14th November 2014, when the 2nd respondent informed him that his application for review had been rejected. 15.Assuming the petitioner’s assertion that he was not issued with a letter of termination to be correct, a strict application of section 89 of the Employment Act leads to the inevitable conclusion that the cause of action accrued on 14th November 2014, when the 2nd respondent notified him that his application for review had been declined. 16.In defining what constitutes a cause of action, the Court of Appeal in Attorney General & another v Andrew Maina Githinji & another [2016] eKLR cited with approval the decision in Letang v Cooper [1964] 2 All ER 929 at page 934, where the Court stated as follows:“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.” 17.Applying the foregoing definition to the present case, it is evident that the cause of action arose once the petitioner became fully aware of the facts relating to his employment status. Accordingly, even assuming that the petitioner had previously been unaware of his status, the 2nd respondent’s letter dated 14th November 2014 cleared any doubt and expressly informed him that his application for review in respect of his dismissal from service had been declined on account of being time-barred and that his case had been closed. 18.Notwithstanding his knowledge of the decision dismissing him from employment, the petitioner did not institute proceedings before this court until 22nd April 2025. 19.In the circumstances, it follows that by the time the instant petition was filed, the claim was already statute-barred, having been brought well beyond 3 years from the date the cause of action accrued. 20.The mere fact that the petitioner approached the court through a constitutional petition does not cure the defect of limitation. 21.While the general rule is that there is no prescribed limitation period for the enforcement of fundamental rights and freedoms, this does not imply that such claims may be brought indefinitely, regardless of the lapse of time since the cause of action arose. 22.In addressing this issue, the Court of Appeal in Mitei v National Social Security Fund Board of Trustees [2022] KECA 974 (KLR) stated as follows:“Even though there is no limitation period for bringing an action alleging violation of a party’s constitutional rights and freedoms, the court is entitled to consider whether the claim was lodged within a reasonable time.” 23.Similarly, the court in James Kanyiita Nderitu v Attorney General & another [2019] eKLR held as follows:“Although there is no limitation period for filing proceedings to enforce fundamental rights and freedoms, the court in considering whether or not to grant relief under ... the Constitution, is entitled to consider whether there has been inordinate delay in lodging the claim. The Court is obliged to consider whether justice will be served by permitting a respondent, whether an individual or the State in any of it manifestations, should be vexed by an otherwise stale claim. Just as a petitioner is entitled to enforce its fundamental rights and freedoms, a respondent must have a reasonable expectation that such claims are prosecuted within a reasonable time.” 24.Applying the foregoing precedents to the present case, the court finds that the delay in instituting the instant petition was inordinate. 25.Indeed, in Mitei v National Social Security Fund Board of Trustees [2022] KECA 974 (KLR), the Court of Appeal agreed with the trial court’s finding that a delay of 7 years was inordinate. 26.I also adopt the reasoning of the Court of Appeal in Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR, where the court observed that delay is antithetical to the right to a fair trial, which is among the fundamental rights guaranteed under article 50 of the Constitution. The court further held that permitting a party alleging violation of constitutional rights to institute proceedings after an unexplained and inordinate delay would amount to an abuse of the court process and would run contrary to the constitutional principles under article 159, which require justice to be administered without undue delay. 27.In view of the foregoing, the court finds and holds that the petitioner failed to institute the claim within the statutory timelines and, further, that the delay in filing the petition was inordinate. 28.In the final analysis, the respondent’s notice of preliminary objection dated 18th December 2025 is upheld, with the result that the petition dated 25th April 2025 is hereby struck out for being statute-barred. 29.Each party shall bear its own costs. DATED, SIGNED AND DELIVERED AT NYERI THIS 15TH DAY OF MAY, 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Petitioner - No appearance.For the 1st, 2nd and 3rd Respondents - No appearance.For the 4th Respondent - Mr. Odukenya.For the 5th Respondent - Ms. Kinyua.Court Assistant - Ndati.OrderIn view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. 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 had 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 1B 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.