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ELRCStruck OutPetition dated 18th August 2020 (filed 19th August 2020)· [2021] KEELRC 2122 (KLR)

Kimingi v SMEC International PTY Limited (Petition E034 of 2020) [2021] KEELRC 2122 (KLR)

Employment and Labour Relations Court
24 February 2021
NMNzioki Wa Makau
1,772 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 struck out a constitutional petition because an ordinary employment dispute, poorly pleaded, cannot be dressed up as a constitutional violation.

What this practically means

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Executive summary

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The Respondent/Applicant filed a Notice of Motion dated 21st October 2020 seeking to strike out the Petitioner's Petition dated 18th August 2020 on the ground that it failed to meet the threshold of a constitutional petition, was vague and evasive, and merely disguised an ordinary employment dispute arising from the termination of the Petitioner's employment, which should have been brought as a statement of claim under the Employment Act, 2007. The Petitioner opposed, asserting that the Petition pleaded violations of Articles 27(5), 41(1) and 47(1) with precision, and that the ELRC's jurisdiction under Article 165(3) and Article 162(2) is concurrent. Both parties filed authorities and submissions. The court framed one issue: whether the Petition raised issues of constitutional violation meeting the constitutional petition threshold. Relying on Anarita Karimi Njeru and Mumo Matemu, the court held the Petitioner failed to plead with specificity the provisions infringed and the particulars of contravention, including in relation to Article 23(3) relief. The court held that not all employment disputes are constitutional issues and found this to be an employment dispute elevated to a constitutional dispute, as evidenced by the reliefs sought. The court struck out the Petition for failing the specificity threshold, with costs to the Respondent.

Key legal issues

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01

Whether the Petition met the constitutional petition threshold

Holding

The Petition failed the specificity threshold as it did not specify the provisions infringed or give particulars, and the dispute was essentially a labour dispute

Reasoning

The court found the Petitioner cited Article 41(1) but failed to specify the provision and give particulars of the alleged contravention, and that the reliefs sought under Article 23(3) were not pleaded with specificity. Applying Anarita Karimi Njeru and Mumo Matemu, the court held the matter was an employment dispute under the Employment Act improperly elevated to a constitutional petition, and struck it out.

p. 3

Legal principles established

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  • A party alleging constitutional violation must plead with precision the provision infringed and the particulars of the infringement (Anarita Karimi Njeru threshold)
  • Not every employment dispute or breach of the law may be elevated into a constitutional petition

Court orders

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  1. 1.Petition dated 18th August 2020 struck out for failing to meet the specificity threshold
  2. 2.Costs of the application and Petition awarded to the Respondent/Applicant

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 23(3), 27(5), 41(1), 47(1), 162(2), 165(3), 165(3)(b)
  • Employment ActSection 41
  • Employment and Labour Relations Court ActSection 12

Cases cited (11)

  • Peter M. Kariuki v Attorney General
    [2014] eKLR
  • Paul Omondi Otiende & 10 Others v Attorney General & 3 Others
    [2016] eKLR
  • Kevin Turunga Ithagi v Fred Ochieng & 5 Others
    [2015] eKLR
  • Siaya County Public Service Board v County Assembly of Siaya & Another
    [2020] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR; Civil Appeal No. 290 of 2012
  • Leonard Munyua Kamau v Kenya Wildlife Service & 2 Others
    [2020] eKLR
  • Rachel Otieno Odumo & 27 Others v Kenya Engineering Workers Union Headquarters & 2 Others
    [2017] eKLR
  • Anarita Karimi Njeru v Republic (No. 1)
    [1979] 1 KLR 154
  • Elizabeth Mburu v Kenya Breweries Ltd
    [2014] eKLR
  • Petronella Nellie Nelisiwe Chirwa v Transnet Limited and Others
    (CCT 78/06) [2007] ZACC 23
  • Francis James Ndegwa v Tetu Dairy Co-operative Society Limited
    [2016] eKLR
Jurisdiction invoked
Articles 165(3) and 162(2) of the Constitution of Kenya 2010; Section 12 of the 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, "Kimingi v SMEC International PTY Limited (Petition E034 of 2020) [2021] KEELRC 2122 (KLR)", Case Analysis (2021). Petition dated 18th August 2020 (filed 19th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2122/eng@2021-02-24

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