Munir Sheikh Ahmed v National Bank of Kenya [2018] KEELRC 185 (KLR)
The bottom line
#Kenya's Employment Court confirmed you can sue for unfair dismissal and constitutional rights violations in one case, not two.
What this practically means
#Executive summary
#Key legal issues
#Whether the constitutional-avoidance rule required the petition to be struck out because contractual remedies existed under the Employment Act
The preliminary objection was dismissed; the constitutional-avoidance rule is vestigial under the 2010 Constitution and the ELRC may entertain combined contractual and constitutional claims
The Court noted the petition pleaded both constitutional violations (Articles 41, 47, 28) and contractual claims. Relying on Rule 7(3) of the ELRC (Procedure) Rules, 2016 and its own precedents, it held Article 19(3)(b) elevates statutory rights into the Bill of Rights, that severance would waste time and resources, and that Article 159(2)(d) favours administering justice without undue procedural technicalities. It distinguished pre-2010 authority such as Rodgers Mwema Nzioka.
Whether the ELRC has jurisdiction over claims alleging violation of rights and fundamental freedoms arising from employment relationships
Yes; both parties agreed the Court enjoys such jurisdiction, and the Court adopted the USIU/Mugendi line of authority that employment rights are part of the Bill of Rights within the Industrial Court's province
The parties were in agreement that the Court has jurisdiction to adjudicate disputes alleging violation of rights and fundamental freedoms. The Court of Appeal in Mugendi v Kenyatta University approved Majanja J's holding in USIU that excluding the Industrial Court from other rights arising from employment relationships would create parallel jurisdiction and forum shopping. The composite petition should therefore be heard in the ELRC.
Legal principles established
#- Under the Constitution of Kenya 2010, statutory and other rights recognised by law are elevated into the Bill of Rights (subject to consistency with Chapter Four), so a litigant may combine constitutional and contractual claims in one petition before the ELRC
- The constitutional-avoidance rule is highly modified under the 2010 Constitution and applies only in a diminished or vestigial form
- A litigant need not file separate ordinary and constitutional proceedings arising from the same facts; all reliefs may be sought in a single process
Court orders
#- 1.The notice of preliminary objection dated 02.11.2018 is dismissed with costs in the cause
- 2.Parties directed to take steps towards the expeditious hearing and determination of the petition
- Jurisdiction invoked
- Article 162(2) of the Constitution; Employment and Labour Relations Court Act, 2011 (section 3; section 12)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munir Sheikh Ahmed v National Bank of Kenya [2018] KEELRC 185 (KLR)", Case Analysis (2018). Petition filed 26.10.2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/185/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.