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ELRCDismissedPetition (ELRC), conservatory application dated 28th January 2021· [2021] KEELRC 1765 (KLR)

Lameck Migiro & 12 others v Attorney General [2021] KEELRC 1765 (KLR)

Employment and Labour Relations Court
27 April 2021
5,768 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to suspend sections of the Tea Act 2020, ruling that a law's constitutionality must be tested at a full hearing, not on interim applications.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court (Hellen Wasilwa J) disposed of a notice of application dated 28th January 2021 in which the seven petitioners, employees of KTDA Management Services and associated tea factory bodies, sought conservatory orders suspending the implementation of Sections 34(4), 34(5), 34(6) and 34(7) of the Tea Act, 2020 pending hearing and determination of their petition. The petitioners contended that the impugned provisions would abolish offices, alter terms of employment and remuneration, and cause massive job losses during the Covid-19 era without fair hearing, violating Articles 24(1), 27, 41, 43, 47, 50 and 54 of the Constitution and the Employment Act, and that the Act was enacted without adequate public participation. The respondent, the Cabinet Secretary for Agriculture, opposed the application, invoking the presumption of constitutionality of legislation, asserting that the job-loss allegations were speculative, that redundancy and related processes are governed by existing employment legislation, that public participation was extensively undertaken, and that public interest favoured implementation of the Act for the benefit of tea farmers. After considering submissions, the court held that legislation enjoys a presumption of constitutionality, that unconstitutionality cannot be determined at an interim stage, and that any illegality, if later established, could be remedied. The court declined the conservatory orders, directed that the main petition proceed, and ordered costs in the petition.

Key legal issues

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01

Jurisdiction to grant interim relief against a statute

Holding

The court has jurisdiction under Article 23(3) to consider the challenge, but cannot determine unconstitutionality on an interim application

Reasoning

The petitioners relied on authority establishing that the ELRC, with the status of the High Court, may determine whether a law is inconsistent with the Constitution. The court accepted the jurisdictional footing but held that the substantive question of unconstitutionality could only be resolved after full hearing of the petition, not at the interim stage.

p. 7
02

Presumption of constitutionality of statutes

Holding

The Tea Act, 2020 enjoys a presumption of constitutionality which the petitioners had not displaced at the interim stage

Reasoning

Relying on the Susan Wambui Kaguru decision, the court held that every statute enjoys a presumption of legality, and the burden lies on the petitioners to prove unconstitutionality. Serious and weighty arguments must await full argument; no interim declaration should undo legislative will absent strong and cogent reasons.

p. 7
03

Evidential basis for conservatory orders

Holding

Mere apprehension, speculation and fear of job loss did not establish imminent danger justifying conservatory orders

Reasoning

The respondent argued, and the court accepted, that the allegations of terminations, redundancy and changed terms were speculative with no evidential foundation. Any alleged threat of violation is a question of fact requiring evidence; further, redundancy is a lawful process under Section 40 of the Employment Act, and any illegality, if established, can be remedied later.

p. 7

Legal principles established

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  • Legislations passed by parliament are presumed constitutional and unconstitutionality can only be determined after full hearing of the petition, not on an interim application

Court orders

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  1. 1.The application dated 28th January 2021 is found not merited and is declined
  2. 2.The main petition to proceed to hearing
  3. 3.Costs in the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 22, 23(3), 24(1)(e), 258(2)(c), 27(1),(3),(4), 41(1),(2)(a), 43(1), 47(1), 50(1), 54(1)(e), 54(2), 118, 162(2)(a), 165(3)(d)
  • Tea Act, 2020Sections 34(4),(5),(6),(7), 71
  • Employment Act, 2007Section 40
  • Employment and Labour Relations Court ActSection 12(1)(a)
  • Fair Administrative Action Actnull
  • Companies Actnull

Cases cited (11)

  • Simeon Kioko Kitheka & 18 others v County Government of Machakos & 2 others
    [2018] eKLR
  • Okiya Omtata Okoiti v Cabinet Secretary, for Information Communication and Technology & 2 others
    [2019] eKLR
  • David Ndii & others v Attorney General & others
    [2021] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Wilson Kaberia Nkunja v The Magistrates and Judges Vetting Board and others
    [2016] eKLR
  • The Centre for Human Rights and Democracy & 7 others v The Judges and Magistrates Vetting Board & others, Eldoret Petition No. 11 of 2012
    null
  • Law Society of Kenya v Attorney General & another
    [2020] eKLR
  • Susan Wambui Kaguru & others v Attorney General and Another
    [2012] eKLR
  • Francis Nduthu Karanja v Attorney General & another
    [2008] eKLR
  • Okiya Omtata Okoiti v Attorney General & 5 others
    [2020] eKLR
  • Alfred N. Mutua v Ethics and Anti-Corruption Commission & 4 others
    [2016] eKLR
Jurisdiction invoked
Article 23(3) of the Constitution; Article 162(2)(a) and Section 12(1)(a) Employment and Labour Relations Court Act

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, "Lameck Migiro & 12 others v Attorney General [2021] KEELRC 1765 (KLR)", Case Analysis (2021). Petition (ELRC), conservatory application dated 28th January 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1765/eng@2021-04-27

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