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ELRCDismissedPetition (date of Notice of Motion: 1st January 2022) - application for certification under Article 165(4)· [2022] KEELRC 167 (KLR)

Magare Gikenyi J Benjamin v Ministry of Labour (MoL & another; Federation of Kenyan Employers (FKE) & 4 others (Interested Party) [2022] KEELRC 167 (KLR)

High Court of Kenya
31 March 2022
SRStella Rutto
1,692 words in judgment
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The bottom line

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The High Court declined to assign a three-judge bench to a challenge against Kenya's maternity leave law, ruling it raises no substantial question of law.

What this practically means

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Executive summary

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Dr. Magare Gikenyi J. Benjamin moved the High Court by Notice of Motion dated 1st January 2022, brought under Articles 22(1), 23(a) and 159 of the Constitution read with Rules 3, 5, 7(1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Rules, seeking an order constituting a bench of an uneven number of judges under Article 165(4) to hear and determine his petition, together with any other orders the court deemed fit and costs in the cause. The application was anchored on the petitioner's challenge to section 29 of the Employment Act, 2007, which he argued discriminated against men (and, indirectly, women in employment) contrary to Article 27. The respondents and interested parties did not respond. The sole issue was whether the petition raised a substantial question of law warranting reference to the Chief Justice for empanelment of a bench of not less than three judges. Adopting the test in Robert N. Gakuru, and the holistic approach of Odunga J in Wycliffe Ambetsa Oparanya, Stella Rutto J held that the constitutional challenge to section 29 is neither intertwined nor complex, involving no diverse areas of law. Relying on Harrison Kinyanjui, she further held that a single judge's decision is of no less force than a three-judge bench's, and emphasised judicial economy. She declined the application and ordered costs in the cause, delivering the ruling virtually under COVID-19 directions.

Key legal issues

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Whether the petition challenging the constitutionality of section 29 of the Employment Act raises a substantial question of law warranting certification under Article 165(4)

Holding

It does not; the matter is not intertwined with diverse areas of law, is not complex, and judicial economy favours determination by a single judge.

Reasoning

The court adopted the test in Robert N. Gakuru: novelty, complexity across diverse areas of law, and the need for an alternative view. It also adopted Odunga J's holistic approach that no single factor automatically qualifies a matter, and noted Majanja J's holding that a single judge's decision carries equal force. The impugned provision raises a single constitutional question not complex enough to justify empanelment, and judicial resources must be used reasonably.

p. 3

Legal principles established

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  • A matter raising a substantial question of law under Article 165(4) is one that is novel or sui generis, intertwined and involving diverse areas of law, relatively complex, and calling for an alternative view; other considerations include weightiness, public interest and impact on legislation or public policy.
  • The decision of a single Judge of the High Court on such an issue is of no less force than that of a three-Judge bench.

Court orders

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  1. 1.The Application for certification and empanelment of a bench of uneven number of judges under Article 165(4) is declined
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 22(1), 23(a), 27, 48, 159, 159(2)(d), 165, 165(3)(b), 165(4)
  • Employment ActSection 29
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRules 3, 5, 7(1) and (2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Peter Nganga Muiruri vs Credit Bank Limited & Another
    Civil Appeal No. 203 of 2006
  • Wycliffe Ambetsa Oparanya & 2 others vs Director of Public Prosecutions & another
    [2016] eKLR
  • Robert N. Gakuru & Another vs the County Government of Kiambu and Another
    [2013] eKLR
  • Harrison Kinyanjui vs Attorney General & Another
    [2012] eKLR
Jurisdiction invoked
Articles 22(1), 23(a), 159 and 165(4) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Magare Gikenyi J Benjamin v Ministry of Labour (MoL & another; Federation of Kenyan Employers (FKE) & 4 others (Interested Party) [2022] KEELRC 167 (KLR)", Case Analysis (2022). Petition (date of Notice of Motion: 1st January 2022) - application for certification under Article 165(4). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/167/eng@2022-03-31

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