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Court of AppealPartially AllowedNot stated in judgment

Hassan v Simidi & another (Civil Appeal 195 of 2016) [2019] KECA 107 (KLR)

Court of Appeal of Kenya
6 December 2019
EGE. M. GithinjiWKW. KaranjaMartha Karambu KoomeM. K. Koome
4,074 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal threw out a Kshs 3 million award because the ex-employee wrongly sued using the Constitution instead of the Employment Act.

What this practically means

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Executive summary

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The appellant, the Managing Director/CEO of National Oil Corporation of Kenya, appealed against an ELRC judgment of 30th November 2015 awarding the 1st respondent (a former Internal Audit Manager) Kshs. 3,000,000 in general damages for violation of his right to fair labour practices under Article 41 of the Constitution, following termination and later interdiction of his employment. The 2nd respondent cross-appealed against the damages award. The central ground of appeal was that the 1st respondent's contract of employment had no statutory underpinnings rendering breach actionable by constitutional petition rather than ordinary suit. The Court of Appeal, in a unanimous judgment, adopted the constitutional-avoidance principle endorsed by the Supreme Court in the Communications Commission case and the persuasive South African authority of Barbara De Klerk, holding that where legislation (the Employment Act and Labour Relations Act) has been enacted to give effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution without challenging the statute or alleging its remedies are inadequate. The Court held the interdiction and termination dispute was purely contractual/employment-based, not a constitutional issue, so the ELRC acted in excess of jurisdiction. The Court rejected the argument that jurisdiction was raised for the first time on appeal, noting the replying affidavit and written submissions at trial had raised the competency of the petition. The appeal was allowed, the ELRC judgment set aside in its entirety, and the cross-appeal dismissed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ELRC had jurisdiction to entertain a constitutional petition enforcing a purely contractual employment dispute (governed by the Employment Act) without challenging the constitutionality of the Employment Act or alleging its remedies were inadequate
  2. 2.Whether the interdiction and termination of the 1st respondent's employment was a constitutional issue amenable to enforcement by way of petition under Article 41 of the Constitution
  3. 3.Whether the issue of jurisdiction was properly raised for the first time on appeal

Key legal issues

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01

Whether a litigant may enforce contractual employment rights by way of a constitutional petition under Article 41 where the Employment Act already gives effect to the right to fair labour practices

Holding

No. The petition was incompetent and the ELRC acted in excess of jurisdiction.

Reasoning

The court adopted the constitutional-avoidance principle from Barbara De Klerk and the Supreme Court's Communications Commission decision. Where Parliament has enacted legislation (the Employment Act and Labour Relations Act) to give effect to Article 41 rights, providing adequate remedies and enforcement mechanisms, a litigant cannot bypass that legislation by founding a cause of action directly on the Constitution unless challenging the statute's validity or the adequacy of its remedies.

p. 8
02

Whether the jurisdictional objection could be raised for the first time on appeal

Holding

Yes — the objection had in fact been raised in the trial court through the replying affidavit and written submissions, though not decided.

Reasoning

The Court found the 1st respondent's counsel mistaken in asserting jurisdiction was never raised. The Acting HR Manager's replying affidavit pleaded that the dispute was strictly employment-based and that the petition ought not be entertained; counsel's written submissions likewise questioned the competency of the petition. The trial court simply failed to decide those issues.

p. 7
03

Whether the ELRC has jurisdiction to enforce Bill of Rights provisions in employment matters

Holding

Not decided — the appeal did not concern the ELRC's jurisdiction to enforce Article 41 rights; it concerned whether a purely contractual dispute could be brought as a constitutional petition.

Reasoning

Counsel for the 1st respondent argued the ELRC lacked Article 23(3) jurisdiction, but the Court distinguished this from the actual issue. Citing Mugendi v Kenyatta University, the Court noted ELRC has jurisdiction to enforce Article 41 rights and ancillary fundamental rights within matters in its statutory jurisdiction. The real question was different: whether a contract-governed employment grievance could be re-cast as a constitutional petition.

p. 7

Legal principles established

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  • Where legislation has been enacted to give effect to a constitutional right, a litigant may not found a cause of action directly on the Constitution without challenging the legislation or alleging its remedies are inadequate.
  • An employment dispute arising from breach of a contract of employment governed by the Employment Act is not a constitutional issue and does not, without more, disclose a cause of action anchored on the Constitution.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the lower court is set aside in its entirety
  3. 3.The cross-appeal is dismissed
  4. 4.The 1st respondent shall pay the costs of this appeal and costs in the court below to the appellant
  5. 5.There shall be no orders as to costs in respect of the cross-appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EG
majority
WK
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Employment and Labour Relations Court (ELRC)
Not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal from the Employment and Labour Relations Court (per ELRC/Constitution, Art. 162(2) and related statutory framework)

Relief refused

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Cross-appeal against award of damages

Finding that the petition was incompetent disposed of the entire appeal including the cross-appeal

p. 8

Costs

The 1st respondent shall pay the costs of this appeal and costs in the court below to the appellant; there shall be no orders as to costs in respect of the cross-appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

where a legislation has been enacted to give efiect 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
p. 8Constitutional avoidance in employment disputes
the alleged unlawful interdiction and termination of a contract of employment was not a constitutional issue and thus the petition did not disclose a cause of action anchored on the Constitution
p. 8Scope of Article 41 constitutional petitions
(i) the appeal is allowed, (ii) the judgment of the lower court is set aside in its entirety, (iii) the cross-appeal is dismissed, (iv) the 1st respondent shall pay the costs of this appeal and costs in the court below to the appellant, (v) there shall be no orders as to costs in respect of the cross-appeal.
p. 8Final orders
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or the Act of Parliament, that procedure should be strictly followed
p. 7Speaker v Karume principle endorsed

Issues in the judgment

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minor

Contradiction in judgment on cross-appeal outcome vs. costs

minor

Case title and appeal number not expressly stated in the judgment text provided; parties are identified only by roles rather than by names (1st respondent's name, 2nd respondent's name/identity not given)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hassan v Simidi & another (Civil Appeal 195 of 2016) [2019] KECA 107 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/107/eng@2019-12-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.