Lameck Migiro & 12 others v Attorney General [2021] KEELRC 1765 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction to grant interim relief against a statute
The court has jurisdiction under Article 23(3) to consider the challenge, but cannot determine unconstitutionality on an interim application
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.
Presumption of constitutionality of statutes
The Tea Act, 2020 enjoys a presumption of constitutionality which the petitioners had not displaced at the interim stage
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.
Evidential basis for conservatory orders
Mere apprehension, speculation and fear of job loss did not establish imminent danger justifying conservatory orders
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.
Legal principles established
#- 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
#- 1.The application dated 28th January 2021 is found not merited and is declined
- 2.The main petition to proceed to hearing
- 3.Costs in the petition
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.