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ELRCDismissedPetition No 95 of 2018· [2021] KEELRC 2173 (KLR)

Harriet Mwihaki Muchiri v Crescent Tech Limited [2021] KEELRC 2173 (KLR)

Employment and Labour Relations Court
11 February 2021
OMOnesmus N Makau
1,501 words in judgment
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The bottom line

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Kenya's Employment Court ruled that workers can combine constitutional rights claims with ordinary employment grievances in one petition instead of filing separate cases.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Onesmus N Makau, J) on the respondent's Notice of Preliminary Objection dated 16 March 2020 seeking to strike out the petitioner's petition with costs on the ground that it involved a labour dispute raising no constitutional issue. The petitioner, employed as a sales account manager from 16 May 2013, was summarily dismissed on 24 April 2018 for poor performance. She petitioned the court alleging infringement of her rights to equality and freedom from discrimination (Article 27) and dignity (Article 28) during two pregnancies and in the manner of her dismissal, claiming compensation for discrimination, twelve months' salary for unfair termination, unpaid house allowance, notice pay, April 2018 salary, accrued leave and a certificate of service. The respondent maintained the termination was justified by poor performance and that the grievance lay under the Employment Act, relying on authority that a wrong does not automatically raise a constitutional issue. The petitioner countered that Articles 22 and the ELRC Procedure Rules entitled her to petition, and that her pleading met the Anarita Karimi Njeru precision threshold. The court framed two issues: competency of the petition as a constitutional reference, and whether remedy and procedure were exclusively provided elsewhere. It found the petition met the Anarita Karimi Njeru threshold as affirmed in Mumo Matemu, and held the dispute was a mixture of constitutional and contractual grievances that could proceed as filed, since separation would create duplicity of suits. The objection was overruled and dismissed with no order as to costs.

Key legal issues

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01

Whether the petition satisfied the competency threshold for a constitutional reference

Holding

Yes - the petitioner pleaded the specific rights (Articles 27 and 28) and the manner of their violation with sufficient precision

Reasoning

The court perused the petition and found the rights alleged to be violated were clearly identified (equality, non-discrimination and dignity), and the manner of violation pleaded (half salary during pregnancy, harassment and partial treatment on account of pregnancy). This met the Anarita Karimi Njeru threshold as affirmed in Mumo Matemu.

p. 2
02

Whether the remedy and procedure for the petitioner's grievance is exclusively provided elsewhere, barring the petition

Holding

No - the dispute is a mixture of constitutional and Employment Act grievances and may proceed as filed; separation would cause unnecessary duplicity

Reasoning

Although remedies exist under sections 46 and 49 of the Employment Act, employment rights are also constitutionalised under Articles 41 and 47. The grievances straddle Article 22 constitutional enforcement and the Employment Act regime, so the dispute cannot be said to be restricted to either a petition or a statement of claim, and severing them would duplicate suits.

p. 2

Legal principles established

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  • A constitutional petition must plead with reasonable precision the rights violated and the manner of violation (Anarita Karimi Njeru principle)
  • Where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • Where a dispute mixes constitutional violations and employment contract grievances, the court may allow the whole matter to proceed as filed rather than force separation of the claims

Court orders

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  1. 1.The respondent's Notice of Preliminary Objection dated 16.3.2020 is overruled and dismissed with no order as to costs
  2. 2.The matter will proceed as filed (petition and contractual claim together, without separation)

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 27, 27(4) and (5), 28, 41, 41(1) (2)(b), 47
  • Employment ActSections 46, 49, 51(1) & (2)
  • ELRC Procedure Rules 2016Rule 7; Rule 28(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms of the Constitution) Practice and Procedure Rules 2012General

Cases cited (7)

  • James Gacheru Kariuki being a member of The Interest Group of Persons T/A Constituyen Traders Vs County Government of Kiambu
    [2015] eKLR
  • Raphael Otieno Odumo & 27 Others Vs Kenya Engineering Workers Union Headquarters & 2 Others
    [2017] eKLR
  • Anarita Kariuki Njeru Vs Republic
    [1979] eKLR
  • Emmanuel Wambua Muthusi & 6 Others Vs Khoja Slica Ithna Ashari Education Board t/a Jaffrey Academy
    [2020] eKLR
  • Salesio Njeru Mbogo & 112 Others Vs Kenya Planters Co-Operative Union
    [2017] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Speaker of National Assembly Vs James Njenga Karume
    [1992] eKLR
Jurisdiction invoked
Article 22 of the Constitution and Rule 7 of the ELRC Procedure Rules 2016 (enforcement of Bill of Rights in employment 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, "Harriet Mwihaki Muchiri v Crescent Tech Limited [2021] KEELRC 2173 (KLR)", Case Analysis (2021). Petition No 95 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2173/eng@2021-02-11

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