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ELRCPartially AllowedNot stated in the judgment (ELRC Petition; conservatory orders granted 26th October, 2016)· [2017] KEELRC 1745 (KLR)

Monica Munira Kibuchi & 6 others v Mount Kenya University & another [2017] KEELRC 1745 (KLR)

Employment and Labour Relations Court (Industrial Court) of Kenya
17 February 2017
HWHellen Wasilwa
2,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it can rule on constitutional challenges to employment laws, and sent the probationary termination case to a three-judge bench.

What this practically means

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Executive summary

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This is a ruling on two preliminary objections in an ELRC petition in which the Petitioners, former probationary employees whose engagements were terminated by letters dated 28th April 2016, challenge the constitutionality of Section 42(1) of the Employment Act, which excludes the audi alteram partem protections of Section 41(1) from probationary contracts. The Respondent objected that the Court lacks jurisdiction, that the Petition is speculative, speculative and abusive, estopped, waived, contrary to public policy, and that any declaration of unconstitutionality could operate only prospectively, and sought dismissal with costs. The Interested Party (the Attorney General) objected that jurisdiction over constitutional interpretation under Article 165(3)(d)(i) lies exclusively with the High Court, but agreed the matter raises high public interest warranting a three-judge bench. The Court framed three issues: its own jurisdiction, whether a substantial question of law warranting empanelment under Article 165(4) arises, and the orders to grant. Relying on Article 162(2)(a), Section 12 of the Employment and Labour Relations Act, and the USIU and JSC vs Gladys Shollei authorities, the Court held it has jurisdiction to entertain constitutional questions arising from employment relationships, noting that exclusion would create parallel jurisdiction and forum shopping. Applying the Chunilal Mehta test, it found the question of general public importance best determined by a panel of more than one Judge. The matter was referred to the Hon. Chief Justice to consider empanelling an uneven number of Judges. No costs order was made.

Key legal issues

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01

Whether the Employment and Labour Relations Court has jurisdiction to determine the constitutionality of Section 42(1) of the Employment Act

Holding

The Court has jurisdiction; excluding it would create parallel jurisdiction with the High Court and encourage forum shopping.

Reasoning

The Court relied on Article 162(2)(a) establishing special courts with the status of the High Court, Section 12(3)(viii) of the Industrial Court Act empowering appropriate relief, and the authorities of USIU and JSC vs Gladys Shollei. It also noted that in Petition No. 64/2015 (ELRC NRB), J. Mbaru had held the Court competent to hear similar questions on Sections 41, 42(1) and 45(3) of the Employment Act.

p. 5
02

Whether the Petition raises a substantial question of law warranting empanelment of an uneven number of Judges under Article 165(4)

Holding

Yes. The constitutionality of Section 42(1) of the Employment Act is a question of general public importance best determined by a panel of more than one Judge.

Reasoning

Adopting the Chunilal Mehta test as cited by the Petitioners, the Court found the question was unsettled and of general public importance, affecting a wide spectrum of the public. The Interested Party itself acknowledged the matter raised a high level of public interest and supported a three-judge bench.

p. 6

Legal principles established

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  • The Employment and Labour Relations Court has jurisdiction to hear petitions seeking redress of violations of fundamental rights arising from an employment relationship, including questions on the constitutionality of statutes such as the Employment Act.
  • A substantial question of law warranting empanelment of more than one Judge under Article 165(4) is one of general public importance or not finally settled by a superior court.
  • Where a constitutional question affects a wide spectrum of the public, it is better handled by a panel of more than one Judge.

Court orders

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  1. 1.The matter is referred to the Hon. Chief Justice to consider empanelling an uneven number of Judges to hear and dispense of this Petition.
  2. 2.The Court found that it has jurisdiction to entertain the application, rejecting the preliminary objections on jurisdiction.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(4)
  • Constitution of Kenya, 2010Article 165(3)(d)(i)
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 213(3)
  • Employment ActSection 42(1)
  • Employment ActSection 41(1)
  • Employment ActSection 45(3)
  • Employment and Labour Relations Act No. 20 of 2011Section 12
  • Industrial Court Act 2011Section 12(3)(viii)

Cases cited (5)

  • Harrison Kinyanjui vs. Attorney General & Another
    (2012) eKLR
  • Chunilal Mehta Vs. Century Spinning and Manufacturing Co.
    AIR 1962 SC 1314
  • JSC vs. Gladys Shollei, Civil Appeal 50/2014
    (eKLR)
  • United States International University (USIU) vs. Attorney General & 2 Others
    (2012) eKLR
  • Petition No. 64/2015 (ELRC NRB)
Jurisdiction invoked
Articles 162(2)(a), 165(3)(d)(i) and 165(4) of the Constitution of Kenya 2010; Section 12 of the Employment and Labour Relations Act No. 20 of 2011 (Industrial Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Monica Munira Kibuchi & 6 others v Mount Kenya University & another [2017] KEELRC 1745 (KLR)", Case Analysis (2017). Not stated in the judgment (ELRC Petition; conservatory orders granted 26th October, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1745/eng@2017-02-17

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