[2018] KEELRC 147 (KLR)
The court found that the petitioner's claim, though framed as a constitutional petition, was fundamentally a contractual claim for recovery of salary deductions made between July 2007 and September 2009. The suit was filed on 6th March 2017, more than eight years after the cause of action arose. The court held that...
Source-derived case information.
- Citation
- [2018] KEELRC 147 (KLR)
- Parties
- Petitioner: Peter Odongo Obura; Respondent: The Secretary of the County Government of Migori
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 12 of 2017
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed for want of jurisdiction; claim statute barred
- Judges
- MN Nduma
- Legal Topics
- Limitation of Actions, Employment Contracts, Salary Deductions, Jurisdiction, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Odongo Obura
Petitioner
The Secretary of the County Government of Migori
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner's claim for salary deductions is statute barred under the Limitation of Actions Act and the Employment Act.
- 2 Whether the petitioner can disguise a contractual claim as a constitutional petition to circumvent limitation statutes.
- 3 Whether the court has jurisdiction to entertain a time-barred claim.
Ratio Decidendi
The court found that the petitioner's claim, though framed as a constitutional petition, was fundamentally a contractual claim for recovery of salary deductions made between July 2007 and September 2009. The suit was filed on 6th March 2017, more than eight years after the cause of action arose. The court held that the claim was statute barred under both section 4(1) of the Limitation of Actions Act (six-year limit for contract claims) and section 90 of the Employment Act (three-year limit for employment contract claims). The court further held that disguising a time-barred contractual claim as a constitutional petition does not revive the claim or confer jurisdiction. Citing the Devicon...
Court Disposition
petition dismissed for want of jurisdiction; claim statute barred
Orders
- The suit is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
PETITION NO. 12 OF 2017
(Before Hon. Justice Mathews N. Nduma)
IN THE MATTER OF ARTICLE 22(1) AND 40 & 41 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA
(PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS)
PRACTICE AND PROCEDURE RULES, 2013
BETWEEN
PETER ODONGO OBURA.....................................................................................PETITIONER
AND
THE SECRETARY OF THE COUNTY GOVERNMENT OF MIGORI.........RESPONDENT
J U D G M E N T
1. The Petition was filed on 6th March, 2017. The Petitioner seeks payment of Kshs.426,358 which he purports the Respondent deducted from his salary to remit to the family bank limited, Kisii Branch towards a loan repayment. The deductions were done for 29 months between July 2007 to September, 2009.
2. This suit is a simple claim for money lawfully deducted from salary more than eight (8) years from the date the suit was filed.
3. The Claim is statute barred by dint of section 4(1) of the Limitation of Actions Act, Cap 22 Laws of Kenya which prohibits a suit based on contract to be filed more than six (6) years from the date of action arose.
4. Furthermore section 90 of Employment Act 2007, which came into effect in August 2008, prohibits filing of suit based on Employment contract, more than three years from the date the cause of action arose.
5. The Petitioner, has made a futile attempt to disguise this simple claim into a constitutional petition under Article 22 and 23 of the Constitution of Kenya to defeat the doctrine of latches. This abuse of court process, which we continue to see in this court must be snipped in the bud.
6. The Court of Appeal in Devicon case has strictly prohibited superior courts from hearing and determining suits that are clearly time barred. Extension of time, which was not sought in the present case is also not permissible for suits founded on contract in terms of the Devicon doctrine.
7. The suit is time barred and this court lacks jurisdiction to entertain it and is dismissed with costs.
Dated, Signed and Delivered in Kisumu this 6th day of December, 2018
Mathews N. Nduma
Judge
Appearances
Mr. Ojwang Agina for Petitioner
Chrispo – Court Clerk