REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
ELRC PETITION NO. E083 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
JACOB OYOO SYLVESTER ........................................ PETITIONER
AND
KENYA BROADCASTING CORPORATION ............ 1ST RESPONDENT
PUBLIC SERVICE COMMISSION ......................... 2ND RESPONDENT
ATTORNEY GENERAL ........................................ 3RD RESPONDENT
RULING
This ruling regards the 2nd Respondent’s Notice of Preliminary Objection against the Petition.
The gist of the Petition is that the 1st Respondent violated the Petitioner’s right to fair labour practices and discriminated him by failing to promote the Petitioner, unjustly placing the Petitioner in an acting position for a prolonged period, and unfairly terminating the Petitioner through premature retirement in a wrong job group. That on or about 1st December, 1992, the Petitioner was employed by the 1st Respondent as a News Editor 1. Subsequently, the Petitioner worked at the 1st Respondent until 26th December, 2020, when he was prematurely and discriminatorily retired. The Petitioner’s retirement position and Job Group was wrongly indicated as Translator – 1 (JG – BA1). That this was done with the sole illegal and unlawful intention of denying the Petitioner his rightful retirement package and due allowances.
On 20th May, 2016, the 1st Respondent’s Board of Directors appointed the Petitioner to the position of Senior Editor (SS BE-5), a position he served in for five (5) years until his retirement. The Petitioner contends that his rightful retirement package ought to have been in Job Group Senior Editor (SS BE – 5), and not Job Group Translator - 1 (JG-BA1). That around 12th March, 2010, he was promoted to the position of Overall Head of Sports Unit by the 1st Respondent and the 1st Respondent’s Managing Director was made aware of this appointment. That according to the KBC Code of Regulation, this is a very senior position, yet the Petitioner was discriminatorily forced to retain the lower job group of BA3, instead of BE3 assigned to other Heads of Units in the Newsroom, as per KBC Code of Regulations.
It was averred that the Petitioner served as the Supervisor and then as the Overall Head of Sports Unit from 2008 to 26th December 2020, when he was prematurely retired. The Petitioner was never paid commensurate allowances and terminal dues as per the KBC Code of Regulations. On 21st December, 2020, the Petitioner applied for extension of his service as a Person Living with Disability, which was unlawfully and irregularly denied by the 1st Respondent, even though the Petitioner was registered with the National Council for Persons with Disabilities (NCPWD). That the decision to deny the Petitioner extension of service was discriminatory and amounted to unlawful exercise of administrative discretion. The Petitioner was issued with the NCPWD Card and a valid Income Tax Exemption Certificate after numerous assessments of his right leg, which was done by the approved doctors at the Thika Level 5 Hospital.
Consequently, the Petitioner applied to the 1st Respondent to extend his service by five (5) years as his new retirement age stood at 65 years in line with Public Service Commission (PSC) Regulations. The same was allegedly declined on the ground that the Petitioner ought to have registered with the NCPWD at least three (3) years before the designated date of his retirement. It was averred that the decision discriminated against the Petitioner as Regulation 70 (1)(b) and (2) of the Public Service Commission Regulations, 2020 allow for extension of time even where the disability occurred less than three (3) years to the age of retirement.
The Petitioner prays for the following orders:
a) A declaration that the failure of the 1st Respondent to extend the Petitioner’s retirement age to sixty-five (65) years infringed on the Petitioners’ right to fair administrative action and protection against discrimination, and therefore illegal, unlawful, and unconstitutional.
b) A declaration that the 1st Respondent’s decision to retire the Petitioner under Job Group Translator – 1 (JG – BA1), instead of Job Group Senior Editor (SS BE – 5) infringed on the Petitioners’ right to fair administrative action, protection against discrimination, and therefore illegal, unlawful, and unconstitutional.
c) An order directing the 1st Respondent to redesignate the Petitioner’s retirement job group to Job Group Senior Editor (SS BE – 5).
d) An order directing the 1st Respondent to pay the Petitioner’s pension commensurate to the redesignated job group of Job Group Senior Editor (SS BE – 5).
e) An order directing the 1st Respondent to pay the Petitioner pension arrears relating to the redesignated job group from the date of forced retirement of 26th December, 2020.
f) An order directing the 1st Respondent to pay the Petitioner all pending allowances for the positions during the period he served in acting capacity together with interests. Interests on (c), (d), (e), and (f) above until payment in full.
g) Costs of the Petition
h) Any other order or reliefs that this Honourable Court may deem fit and just to grant in the circumstances.
In response to the Petition, the 2nd Respondent filed a Notice Preliminary Objection on grounds that the matter was time barred, offended the mandatory provisions of Section 90 of the Employment Act and the suit was not only incompetent but also an abuse of the court process and ought to be struck out with costs.
Submissions
The 2nd Respondent submitted on whether the suit was time barred. Reliance was placed on the provision’s of Section 90 of the Employment Act to arguing that where a suit was statutorily barred, not even a court had the power to extend the same. It was submitted that the Petitioner’s cause of action arose on 26th December 2020 and therefore his claim lapsed on 25th December 2023; and the suit was filed 2years and 3 months outside the prescribed period. Reliance was further placed on the decision in Kigamba v Mount Kenya University [2025] KEELRC 1267 (KLR) to reinforce the submission.
As to whether time can be expanded, reliance was placed on the decision in Divecon vs Samani [1995-1998] 1 EA 48 and Ng’ang’a v County Government of Nakuru (Miscellaneous Civil Application E007 of 2022) [2023] KEELRC (KLR) (29 March 2023) (Ruling).
As regards the filing of the suit as a Petition to avoid the issue on limitation, reliance was placed on the case of Makewa v Teachers Service Commission [2024] eKLR.
1st Respondent’s submissions
As to whether the petition was statute barred counsel submitted that section 89 of the Employment Act was explicit that causes of action arising out of the Act or a contract of service become time barred after three years which is a jurisdictional matter as held in Thuranira Karauri v Agnes Ncheche (1997) KECA 77 (KLR), G 4S Security (K) Ltd v Joseph Kamau & 468 others (2018) KECA 827 (KLR), Muthinga v Kenya Relief Organization (2025) KEELRC 2029 (KLR) on the running of time as well as the decisions in Makokha v Judicial Service Commission, Otieno v Kenya Revenue Authority and Teachers Service Commission v Wanjiru Macharia.
Counsel further urged that framing the suit as a petition could not avail the petitioner. Reliance was placed on the decisions in Attorney General and another v Andrew Maina Githinji (2015) eKLR and Beatrice Kahai Adagala v Postal Corporation of Kenya.
Counsel submitted that the alleged violations were not continuing citing the decision in Rift Valley Railways (K) Ltd v Hawkins Wagunza Musonye & another (2016) KECA 213 (KLR).
Finally, counsel submitted that the disability claim was an afterthought and acceptance of the retirement package and continued to receive pension payments signified closure of the employment relationship as held in Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya).
Petitioners Submissions
As to whether the petition was grounded on alleged Constitutional allegations in an employment relationship, counsel cited the decisions in Muli v Kenya Water Institute & 2 others (2023) eKLR on the court’s jurisdiction to hear and determine petitions and the Supreme Court decision in Kenya Tea Crowers Association & 2 others v The National Social Security Fund Board & Trustees & 13 others (2024) KESC 3 (KLR).
According to counsel the Petitioner’s claim revolved ground alleged violations of his right to fair labour practices and protection from discrimination.
Reliance was further placed on the decision in Pascal Barasa Olaimo & 75 others v Attorney General (2019) eKLR and Janmohammed v District Land Registrar Uasin Gishu & 4 others (2014) KESC 39 (KLR) to urge that Constitutional Petitions alleging violations of rights and fundamental freedoms were not automatically subject to the statute of limitation and each case should be dealt with based on its own facts.
Counsel relied on the sentiments of the court in Njue & 39 others v Telkom Kenya Ltd (2026) eKLR on non-application of the law of limitation to claims alleging breach of frights and fundamental freedoms where violations were on-going. Further reliance was placed on Ngure v Kenya Rural Roads Authority (2025) KEELRC 500 (KLR).
As to whether the Petition disclosed arguable Constitutional and employment issues for determination, Counsel submitted that the instant petition raised serious and arguable constitutional and employment issues concerning discrimination fair administrative action and fair labour practices.
As to whether the Notice of Preliminary Objection met the threshold of a valid Preliminary Objection counsel urged that the Preliminary Objection in this instance could not be conclusively determined without examination of evidence on the alleged discrimination and unfair labour practices. Counsel urged the court to dismiss the Preliminary Objection.
Analysis and determination
Contrary to the Petitioner advocate’s submission that the instant petition raised triable Constitutional issues germane to discrimination, unfair labour practices and unequal treatment, this court is not persuaded that that is the case.
In his petition dated 12th March 2026, the petitioner's complaints are that;-
(i) He retired as Senior Editor (SS BE -5) after 5 years of service and the retirement package ought to have been based on that Job Group.
(ii) He served as the Overall Head of Sport Unit from 2008 to December 2020 and was not paid commensurable allowances and terminal benefits.
(iii) He was discriminated as a person living with disability, yet he had the Card and Tax Exemption Certificate.
(iv) He was retired prematurely.
While section 5 of the Employment Act outlaws discrimination at the workplace including against prospective employees in recruitment the recruitment process, pension is provided for under the Pensions Act, the Public Service Commission Act and attendant Regulations. The relevant Statutory arrangements on retirement includes provisions of the Income Tax Act, National Social Security Fund Act and the Retirement Benefits Act among others.
Relatedly, the Petitioner’s Job Group at any point when he was an employee of the Respondent was exclusively an employment matter governed by the Respondent’s human resource instruments. Allowances payable to an employee are part of the employees benefits and it behooved the petitioner to ensure that all allowances due to him were paid. Not doubt 2008 is along time ago, almost 20 years later.
The foregoing is fortified by the sentiments of the Court of Appeal in Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another (2019) eKLR as follows:
“Time and again it has been been said that where there exist other sufficient and adequate avenue to resolve a dispute a party ought not trivialize the jurisdiction of the Constitutional court by bringing actions that could very well and effectively be dealt within that other forum such party ought to seek redress under such other legal remine other than trivialize Constitutional litigation…”
See also in this regard Daniel Mugendi v Kenyatta University & 3 others (2013) eKLR.
On jurisdiction, the court is guided by the sentiments of the Court in Anthony Miano & others v Attorney General & others [2021] eKLR where it was held:
20. At this point in time, I will deal with the legal aspect of jurisdiction. Jurisdiction is defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”. Black’s Law Dictionary, 9th Edition, defines jurisdiction as the Court’s power to entertain, hear and determine a dispute before it.
21. In Words and Phrases Legally Defined Vol. 3, John Beecroft Saunders defines jurisdiction as follows:
By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.
22. That, jurisdiction is so central in judicial proceedings, is a well settled principle in law. A Court acting without jurisdiction is acting in vain. All it engages in is nullity. Nyarangi, JA, in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1 expressed himself as follows on the issue of jurisdiction: -
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings…
…
29. Before I deal with the above provisions, I, will generally and for completeness of a jurisprudential discussion, look at the concept of non-justiciability. The concept of non-justiciability of disputes before Courts is a sound one in law. It has its basis in Article 159 of the Constitution which routes for alternative dispute resolution mechanisms. The concept of non-justiciability is comprised of three doctrines: Firstly, the Political Question Doctrine; secondly, the Constitutional-Avoidance Doctrine; and, thirdly, the Ripeness Doctrine. The doctrines are crosscutting and closely intertwined.
…
33. The doctrine of constitutional avoidance, therefore, deals with instances where a Constitutional Court will decline to deal with a matter because there exists another remedy provided in law which the aggrieved party is yet to utilize. That is also referred to as the doctrine of exhaustion.
On the right to institute proceedings on the alleged infringements the sentiments of the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR are worth recapitulating:
“…Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement...”
Similarly, in John Mining Temoi & another v Governor of Bungoma County & 17 others [2014] eKLR the court stated as follows:
“81. As a basic minimum, the Petitioners are required to not only cite the provisions of the Constitution which have been violated but also the manner in which they have been violated with regard to them. See the case of Anarita Karimi Njeru (1976-80) 1 KLR 1272 and Trusted Society of Human Rights Alliance -v- Attorney General & Others High Court Petition No. 229 of 2012. In demonstrating the manner in which there has been a violation of their rights or of the Constitution, the Petitioners should present before the court evidence or a factual basis on which the court can make a determination whether or not there has been a violation…”
In the Court’s view, the instant Petition is purely an employment dispute capable of being resolved by application of the provisions of the Employment Act and was filed as a Petition in an attempt to evade the provisions of section 89 of the Employment Act, which provides:
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 the case of continuing injury or damage within twelve months next after the cessation thereof.
In the circumstances, it is the finding of this court that the 2nd Respondents Notice of Preliminary Objection is merited as the cause of action is statute barred and as a consequence the Court lacks the jurisdiction to entertain it.
The Petition dated 12th March 2026 is struck out with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF MAY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In 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 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 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.
DR. JACOB GAKERI
JUDGE
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