Mwathi & 75 others v Embu Water and Sanitation Company (Employment and Labour Relations Petition E013 of 2021) [2023] KEELRC 129 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over constitutional disputes touching employment and labour relations
The court found it had jurisdiction; the respondent's jurisdictional objection was dismissed.
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.
Whether the petition met the Anarita Karimi Njeru competence threshold
It did not; the petition made general statements citing articles without particulars of the manner and extent of violations.
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.
Whether a statutory alternative procedure barred the constitutional petition
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.
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.
Whether the respondent violated the petitioners' constitutional rights
No violation was established; no evidence supported the alleged violations.
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.
Legal principles established
#- 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
#- 1.The petition is dismissed with costs
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act and Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.