Douglas Wawire Mulekano v Attorney General [2022] KEELRC 651 (KLR)
The bottom line
#Kenya's Employment Court ruled that Kenya Defence Forces members can sue in court over dismissal without first using internal military grievance channels.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the claim
The court has jurisdiction; the claim concerns employment and constitutional rights within its original and unlimited jurisdiction
The court adopted theOwners of Motor Vessel 'Lilian S' principle that jurisdiction is everything, but held the golden test is the subject matter: employment and labour relations under Article 162(2)(a) and the ELRC Act, not the remedies sought or procedure. Constitutional claims of unfair termination fall squarely within the ELRC's unlimited original jurisdiction.
Exhaustion of internal grievance mechanisms under Section 303 of the Kenya Defence Forces Act
Exhaustion is not required for constitutional rights claims; the KDF internal mechanism is narrow and cannot determine constitutional violations
Following the Court of Appeal in the Waithaka appeal, the court held that where constitutional rights violations are raised, the internal/statutory forum is not an adequate alternative forum. Section 303's mechanism is specific and narrow, and the Chief of KDF cannot adjudicate alleged constitutional violations; the claim is competently before the ELRC.
Whether the claim is time barred
The claim was filed within the 3-year limitation window under the Public Authorities Limitations Act
The cause of action arose from the dismissal proceedings of 18th July 2019 and the claim was filed on 29th June 2020, within three years. The claim was therefore valid and not time barred.
Legal principles established
#- Jurisdiction of the ELRC is determined by the subject matter of the dispute (employment and labour relations), not by the remedies sought or the procedure used to approach the court
- A statutory internal grievance mechanism cannot oust the constitutional jurisdiction of the ELRC where claims of constitutional rights violation are raised
Court orders
#- 1.The Notice of Motion dated 4th December 2020 (referred to in the conclusion as the Notice of Motion dated 20th December 2021) is dismissed with costs.
- 2.Parties to consider taking directions for further steps towards the expeditious determination of the claim.
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution as read with Articles 165(5) and (6) and the Employment and Labour Relations Act, 2011 (Section 12)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Douglas Wawire Mulekano v Attorney General [2022] KEELRC 651 (KLR)", Case Analysis (2022). Not stated in the judgment (Claim dated 2nd April 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/651/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.