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ELRCDismissedPetition filed 26.10.2018 (number not stated in judgment)· [2018] KEELRC 185 (KLR)

Munir Sheikh Ahmed v National Bank of Kenya [2018] KEELRC 185 (KLR)

Employment and Labour Relations Court
20 December 2018
3,062 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 you can sue for unfair dismissal and constitutional rights violations in one case, not two.

What this practically means

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Executive summary

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The respondent, National Bank of Kenya, raised a preliminary objection against a petition filed by its former Managing Director, Munir Sheikh Ahmed, challenging the termination of his employment. The objection argued that the petitioner's claim was purely contractual, that the constitutional-avoidance rule applied, that the dispute was governed by the Employment Act, 2007 and the Employment and Labour Relations Court Act, 2011, and that the petition abused court process by circumventing statutory remedies. The petitioner countered that he had pleaded both constitutional violations (Articles 41, 47 and 28) and contractual breaches, invoking Rule 7(3) of the ELRC (Procedure) Rules, 2016 permitting enforcement of constitutional rights within a statement of claim. The Court observed that the petition indeed combined alleged constitutional violations with contractual claims capable of pursuit in an ordinary action, but held it just, expeditious and proportionate to determine all matters in the petition under section 3 of the ELRC Act. Following the Court of Appeal in Mugendi v Kenyatta University and its own decisions in Wekesa, Muhura and Biama, the Court held that the 2010 Constitution elevates statutory rights into the Bill of Rights under Article 19(3)(b), collapsing the barriers between ordinary actions and constitutional petitions. It distinguished the pre-2010 decision in Rodgers Mwema Nzioka and held that the constitutional-avoidance rule now enjoys only a diminished, vestigial status. The notice of preliminary objection dated 02.11.2018 was dismissed with costs in the cause, and the parties were directed to take steps towards the expeditious hearing of the petition.

Key legal issues

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01

Whether the constitutional-avoidance rule required the petition to be struck out because contractual remedies existed under the Employment Act

Holding

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

Reasoning

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.

p. 2
02

Whether the ELRC has jurisdiction over claims alleging violation of rights and fundamental freedoms arising from employment relationships

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The notice of preliminary objection dated 02.11.2018 is dismissed with costs in the cause
  2. 2.Parties directed to take steps towards the expeditious hearing and determination of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(1), 10(2)(b), 19(3)(b), 22, 23(3), 258, 159(2)(d), 41, 47, 28
  • Employment Actsections 41, 43, 45(2)(a); 2007
  • Employment and Labour Relations Court Actsections 3, 12; 2011
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 7(1), 7(2) and 7(3)
  • Fair Administrative Actions Actsections 4(1), 4(3)(a), (d) and (g)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rulesreferenced via Rule 7(1)
  • Industrial Court Act, 2011section 12 (as referenced in quoted authority)
  • Mining Actreferenced in quoted authority (Rodgers Mwema Nzioka)
  • The former Constitution of Kenyasection 84 (referenced in quoted authority)

Cases cited (8)

  • Judicial Service Commission v Gladys Boss Shollei & Another
    [2014] eKLR
  • United States International University (USIU) v Attorney General & 2 Others
    [2012] eKLR
  • Prof. Daniel N. Mugendi v Kenyatta University and 3 Others
    Civil Appeal No. 6 of 2012
  • Prof. Moni Wekesa v Mount Kenya University
    [2018] eKLR
  • Rodgers Mwema Nzioka v The Attorney General & 8 Others
    [2006] eKLR
  • Peter Muchai Muhura v Teachers Service Commission
    [2015] eKLR
  • Professor Elijah Biama v University of Eldoret and 2 Others
    [2014] eKLR
  • Harrikissoon v Attorney General of Trinidad and Tobago
    (1980) AC 265
Jurisdiction invoked
Article 162(2) of the Constitution; Employment and Labour Relations Court Act, 2011 (section 3; section 12)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.