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ELRCDismissedNot stated in the judgment· [2019] KEELRC 520 (KLR)

Stephen Karumbi Ngugi v CIM Credit Kenya Limited [2019] KEELRC 520 (KLR)

Employment and Labour Relations Court
25 October 2019
RSRadido Stephen
1,642 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that employees with less than 13 months' service can still sue for unfair termination.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as Finance Director on 7 May 2018 under a two-year fixed-term contract, resigned by notice on 20 September 2018, initially giving seven days' notice believing he was still on probation, then correcting this to a three months' notice running to 20 December 2018. He alleged the Respondent deactivated his access to office and resources and issued a certificate of service before the notice period lapsed, and thereafter sued for unfair termination through constructive dismissal and breach of contract. The Respondent filed a notice of preliminary objection contending the Claimant lacked locus standi under section 45(3) of the Employment Act, having served less than thirteen months, and that the Court lacked jurisdiction. The Respondent urged the Court to follow Mativo J and Githinji JA and hold itself not bound by Lenaola J's declaration in Samuel Momanyi v Attorney General (2012) that section 45(3) was inconsistent with the Constitution. The Claimant countered that his cause embraced constitutional violations and breach of contract beyond unfair termination, that the objection failed the Mukisa Biscuits threshold, and that, absent appeal, section 45(3) no longer formed part of Kenyan law. The Court accepted that coordinate-court decisions do not bind, but held that legal certainty and public policy preclude a court of equal status from undeclaring a declaration of constitutional inconsistency; such questions belong to higher courts. It dismissed the preliminary objection with no order on costs.

Key legal issues

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01

Whether section 45(3) of the Employment Act, 2007 (13-month continuous service threshold) barred the claim

Holding

The Court declined to apply the provision as valid because it had been declared inconsistent with the Constitution by Lenaola J in the Momanyi case, and no appeal had overturned that declaration

Reasoning

While acknowledging that coordinate-court decisions do not bind, the Court held that certainty in constitutional norms and public policy preclude one court of equal status from undeclaring another's declaration of inconsistency. Re-litigation would diminish confidence in the judiciary and lead to legal anarchy. The invitation to reconsider constitutionality should be taken to the Court of Appeal; until then the section remains inconsistent with the Constitution.

p. 3
02

Whether the preliminary objection met the Mukisa Biscuits threshold

Holding

The Court found no merit in the objection and dismissed it, treating the constitutional-validity question as the decisive issue rather than a pure point of law

Reasoning

The Claimant had argued the objection did not meet the Mukisa Biscuits threshold. The Court did not rule on that ground separately but disposed of the objection on the substantive constitutional question, concluding the objection lacked merit.

p. 3

Legal principles established

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  • A court of coordinate jurisdiction has no jurisdiction to undeclare a declaration of inconsistency with the Constitution made by another competent court of equal status; re-litigation of such constitutional questions must go to a higher court
  • As a general legal principle, a judge is not bound by the decision of a court of co-ordinate or concurrent jurisdiction

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.No order as to costs of the preliminary objection

Authorities

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Legislation

  • Employment Actsection 45(3)
  • Constitution of KenyaNot specified

Cases cited (10)

  • Samuel Momanyi v Attorney General & Ar
    (2012) eKLR
  • Nation Media Group Ltd v Onesmus Kilonzo
    (2017) eKLR
  • Republic v Karisa Chengo and two others
    Petition No. 5 of 2015
  • Prof. Daniel M. Mugendi v Kenyatta University & three others
    (2013) eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
    (2014) eKLR
  • David Ramogi & 4 Ors v Cabinet Secretary, Ministry of Energy & Petroleum & 7 Ors
    (2017) eKLR
  • Samuel G. Momanyi v SDV Transami Kenya Ltd
    (2013) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Onesmus Musyoki Kilonzo v Nation Media Group Ltd
    (2014) eKLR
  • Mercy Njoki Karingithi v Emerald Hotels Resorts & Lodges Ltd
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution in respect of employment and labour disputes

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, "Stephen Karumbi Ngugi v CIM Credit Kenya Limited [2019] KEELRC 520 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/520/eng@2019-10-25

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