Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition (moved by motion dated 15 December 2015; cause number not stated in judgment)· [2018] KEELRC 621 (KLR)

Eden Robinson Odhiambo v Board of Trustees Tourism Fund (Petition 100 of 2015) (Employment and Labour) [2018] KEELRC 621 (KLR)

Employment and Labour Relations Court
16 November 2018
RSRadido Stephen
1,348 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court dismissed a worker's petition because he was already pursuing the same claims through a regular employment case.

What this practically means

#

Executive summary

#
The Petitioner, employed by the Respondent in 1991 and serving as Head of Levy Operations and Chairman of the Tender Committee, was suspended on 10 October 2012 pursuant to section 62 of the Anti-Corruption and Economic Crimes Act after being charged with economic crimes. He petitioned in December 2015 alleging that suspension beyond 24 months violated Articles 30, 47 and 50 of the Constitution. On 22 December 2015 the Court held the 2014 amendment to section 62(1) did not apply retrospectively. After his acquittal on 31 July 2017, the Respondent redeployed him as Head of Business Development; the Petitioner then sought to amend the Petition to allege constructive dismissal arising from the advertisement of his position and alteration of his terms of service. The Court framed two issues: the applicability of amended section 62(1), and constructive dismissal. On the first, it held it could not revisit its own prior determination that the amendment was not retrospective, as that would amount to sitting on appeal over itself. On the second, it held the claim was competently dealt with under the statutory employment jurisdiction in pending Cause No. 2172 of 2016, which the Petitioner had already filed on the same facts; invoking the constitutional jurisdiction was an abuse of process. Relying on Harrikissoon and Benard Murage, the Court dismissed the Petition with costs to the Respondent on 16 November 2018.

Key legal issues

#
01

Applicability of amended section 62(1) of the Anti-Corruption and Economic Crimes Act

Holding

The Court could not revisit the question, having already held in its 22 December 2015 ruling that the amendment did not apply retrospectively

Reasoning

The substratum of the Amended Petition was the legality of suspension beyond 24 months. The Court (Nzioki wa Makau J) had already dealt substantively with that question in its ex tempore ruling of 22 December 2015. Revisiting the constitutionality of the section and its application would amount to the Court sitting on appeal on its own prior decision, which it declined to do.

p. 2
02

Alteration of terms of service/constructive dismissal

Holding

The claim belonged to the statutory employment jurisdiction in pending Cause No. 2172 of 2016, not the constitutional jurisdiction, and raising the same issues in the Petition was an abuse of process

Reasoning

The Petitioner had admitted filing Nairobi Cause No. 2172 of 2016 alleging alteration of terms of employment, which was still pending. Following Harrikissoon and Benard Murage, the Court held that where a statutory remedy exists it should be pursued first. Raising the same questions in the Petition on the same facts was abusive of court process.

p. 2

Legal principles established

#
  • A court should not revisit a question it has already determined; doing so would be sitting on appeal on its own decision
  • Where an alternative statutory remedy exists, it should be pursued before invoking the constitutional jurisdiction

Court orders

#
  1. 1.The Petition be dismissed with costs to the Respondent

Authorities

#

Legislation

  • Anti-Corruption and Economic Crimes Actsection 62(1)
  • Constitution of Kenya, 2010Articles 30, 47, 50

Cases cited (2)

  • Harrikissoon v Attorney General of Trinidad and Tobago
    (1980) AC 265
  • Benard Murage v Fine Serve Africa Limited & 3 others
    (2015) eKLR
Jurisdiction invoked
Constitutional petition under Articles 30, 47 and 50 of the Constitution; Employment and Labour Relations Court jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Eden Robinson Odhiambo v Board of Trustees Tourism Fund (Petition 100 of 2015)  (Employment and Labour) [2018] KEELRC 621 (KLR)", Case Analysis (2018). Petition (moved by motion dated 15 December 2015; cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/621/eng@2018-11-16

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