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ELRCDismissedPetition No. E014 of 2021 (number not stated in judgment)· [2023] KEELRC 129 (KLR)

Mwathi & 75 others v Embu Water and Sanitation Company (Employment and Labour Relations Petition E013 of 2021) [2023] KEELRC 129 (KLR)

Employment and Labour Relations Court of Kenya
26 January 2023
2,345 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 dismissed water workers' petition because a vague, general pleading about broken promises is not enough to win a constitutional case.

What this practically means

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Executive summary

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Seventy-eight petitioners, employees of the respondent water agency, petitioned the ELRC at Nyeri on October 14, 2021, alleging violations of their labour rights: threats to terminate their contracts for agitating for permanent and pensionable terms, victimization for participating in an industrial action contrary to a memorandum of agreement (return-to-work formula) dated September 24, 2021, and high-handedness by the respondent's board. They sought prohibition against breach of the memorandum, its specific performance, costs and any other relief. The respondent filed a preliminary objection and replying affidavit contending the petition failed the Anarita Karimi Njeru threshold, lacked evidentiary support, was without jurisdiction and was sub-judice in Petition No. E006 of 2021. Seventy-one petitioners withdrew during interlocutory applications. The court framed five issues: jurisdiction, competence threshold, statutory alternative procedure, violation of rights, and reliefs. It held the ELRC has jurisdiction over constitutional disputes arising from employment and labour relations, following ICIPE v Nancy McNally. However, applying Anarita Karimi Njeru as affirmed in Mumo Matemu, it found the petition pleaded constitutional articles generally without particulars of the manner and extent of violation. Further, following Gabriel Mutava v Kenya Ports Authority, it held the discernible dispute - breach of the return-to-work agreement - belonged before ordinary statutory procedure by way of a memorandum of claim, not constitutional litigation. No evidence established the alleged violations. The petition was dismissed with costs on January 26, 2023, in a judgment delivered online pursuant to Covid-19 directives.

Key legal issues

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01

Jurisdiction of the ELRC over constitutional disputes touching employment and labour relations

Holding

The court found it had jurisdiction; the respondent's jurisdictional objection was dismissed.

Reasoning

Relying on the binding Court of Appeal authority in ICIPE v Nancy McNally, which affirmed USIU v Attorney General as upheld in Daniel N Mugendi v Kenyatta University, the court held the ELRC is clothed with jurisdiction over constitutional issues arising from employment and labour relations. The dispute being between an employer and its employees, the respondent's objection failed.

p. 4
02

Whether the petition met the Anarita Karimi Njeru competence threshold

Holding

It did not; the petition made general statements citing articles without particulars of the manner and extent of violations.

Reasoning

The petition listed articles 19 to 50 under a heading of constitutional provisions violated but pleaded no particulars of how the provisions were breached or the extent of violation. Applying Anarita Karimi Njeru as affirmed in Mumo Matemu, the court found the pleading fell below the required precision, so no case of constitutional violation was established.

p. 4
03

Whether a statutory alternative procedure barred the constitutional petition

Holding

Yes; the alleged breach of the return-to-work memorandum of agreement should have been pursued as a normal suit by way of a memorandum of claim.

Reasoning

The only discernible dispute was breach of a memorandum of agreement (a return-to-work formula) signed to end an industrial action. Relying on Gabriel Mutava v Kenya Ports Authority, the court held constitutional litigation should not supplant suitable statutory forums, and the claim could have been filed as a memorandum of claim under the court's rules of procedure.

p. 5
04

Whether the respondent violated the petitioners' constitutional rights

Holding

No violation was established; no evidence supported the alleged violations.

Reasoning

Having found the petition fell below the pleading threshold, the court further found no evidence adduced to support the alleged violations of constitutional rights. The claims of threatened termination, victimization for the industrial action and high-handedness were not substantiated, and the reliefs of prohibition and specific performance of the memorandum of agreement could not issue.

p. 5

Legal principles established

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  • The ELRC is clothed with jurisdiction to hear and determine constitutional issues arising from employment and labour relations
  • A constitutional petition must set out with reasonable precision the provisions said to be infringed, the manner of infringement and its extent
  • Constitutional litigation should not be used where suitable statutory forums exist; the first port of call should be suitable statutory under-pinned forums

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticles 3, 19, 20, 21, 22, 23, 27, 28, 35, 41, 43, 46, 47, 48, 50 and 162(2)
  • Employment and Labour Relations Court ActSection 12
  • Employment ActNot specified (cited as providing an alternative statutory mechanism)
  • ELRC Procedure RulesRule 28(3)

Cases cited (16)

  • Anarita Karimi Njeru v Republic
    (1979) 1 KLR 154 / (1976-1980) KLR 1272
  • Trusted Society of Human Rights Alliance v Attorney General and 2 others
    (2012) eKLR
  • National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & Another
    (2011) eKLR
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd
    (2017) eKLR
  • Minister of Health & Others v Treatment Action Campaign & Others
    (2002) 5 LRC 216
  • Kennedy Stanley Njindo Matiba v Daniel Toroitich Arap Moi
    (1994) eKLR
  • The Owners of Motor Vessel Lilian "S" v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd
    (2012) eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & Others
    (2013) eKLR
  • Leonard Otieno v Airtel Kenya Ltd
    (2018) eKLR
  • Gabriel Mutava & 2 Others v Managing Director, Kenya Ports Authority
    (2016) eKLR
  • Josphat Ndirangu v Henkel Chemicals (EA) Ltd
    (2013) eKLR
  • Daniel N Mugendi v Kenyatta University & 3 others
    (2013) eKLR
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & Others
    (2014) eKLR
  • International Centre for Insect Physiology and Ecology (ICIPE) v Nancy McNally
    (2018) eKLR
  • United States International University (USIU) v Attorney General
    (2012) eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Article 162(2) of the Constitution

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, "Mwathi & 75 others v Embu Water and Sanitation Company (Employment and Labour Relations Petition E013 of 2021) [2023] KEELRC 129 (KLR)", Case Analysis (2023). Petition No. E014 of 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/129/eng@2023-01-26

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