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ELRCDismissedPetition dated 24th May 2022 (Employment and Labour Relations Court)· [2023] KEELRC 226 (KLR)

Aliela v Kenton College Trust & another (Employment and Labour Relations Petition E084 of 2022) [2023] KEELRC 226 (KLR)

Employment and Labour Relations Court
26 January 2023
OKOcharo Kebira
5,215 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a teacher's unfair-dismissal case because it was filed as a constitutional petition instead of an ordinary employment claim.

What this practically means

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Executive summary

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The Petitioner, a long-serving employee of the Respondent school appointed in November 2002, was summarily dismissed on 15th December 2021 after items belonging to the school valued at approximately Kshs. 17,500 were allegedly found in her car. She filed a constitutional Petition seeking declarations that the termination violated Articles 10, 27, 28, 41 and 47 of the Constitution, orders of certiorari and mandamus (including reinstatement), general damages, or alternatively payment of dues to retirement. She contended she was given inadequate time to prepare for the disciplinary hearing and that the concurrent criminal proceedings amounted to double punishment. The Respondent maintained that the disciplinary process complied with section 41 of the Employment Act, that the theft amounted to gross misconduct justifying summary dismissal under section 44, and that disciplinary and criminal processes are distinct. The court framed four issues and resolved the Petition on threshold grounds without reaching the fairness of the dismissal. First, it held the Petition failed the Anarita Karimi Njeru standard, as it merely recited constitutional provisions without pleading with precision the manner of violation. Second, applying the doctrine of constitutional avoidance as articulated in Communications Commission of Kenya v Royal Media Services and other authorities, it held that an employment dispute addressable under the Employment Act should be litigated under statute, not the Constitution. The Petition was dismissed with costs to the Petitioner.

Key legal issues

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01

Whether the Petition met the threshold of a properly presented constitutional petition

Holding

The Petition failed the Anarita Karimi Njeru precision threshold; it recited constitutional provisions without pleading with particularity how the rights were violated

Reasoning

The court examined Part IV of the Petition and found only general assertions of violation, reproducing constitutional text almost verbatim without linking facts to the alleged infringements of Articles 27, 28, 41, 47 and 50. Even counsel's submissions contained no discussion of specific rights or their violation. Mere general statements cannot satisfy the required reasonable degree of precision.

p. 9
02

Whether the doctrine of constitutional avoidance barred the Petition

Holding

The dispute was one fully addressable under the Employment Act, 2007, and ought to have been pursued in the ordinary manner under statute

Reasoning

Relying on KKB v SCM, Communications Commission of Kenya v Royal Media Services, COD v Nairobi City Water and Sewerage and foreign authorities, the court held that constitutional litigation is a narrow path reserved for exceptional necessity. Where an employment dispute can be resolved under the Employment Act, the Constitution should not be invoked as a substitute remedy.

p. 11
03

Whether the dismissal of the Petitioner's employment was fair

Holding

The court declined to determine this issue because the Petition failed on the threshold and avoidance grounds

Reasoning

Having found the Petition defective and barred by constitutional avoidance, the court considered it unnecessary to adjudicate the substantive fairness of the summary dismissal, leaving those questions open to be litigated, if at all, in a properly framed statutory claim.

p. 11

Legal principles established

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  • A party seeking redress by constitutional petition must plead with precision the rights violated and the manner of violation
  • Constitutional avoidance: where a dispute can be litigated under statute, the constitutional route should not be taken

Court orders

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  1. 1.The Petition is dismissed
  2. 2.The Petitioner to bear the costs of this petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22(1), 23, 27, 28, 41, 47, 48, 50(1), 159(2)(d)
  • Employment Act, 2007Sections 5, 41, 41(2), 43, 44, 44(3), 44(4)(g), 45(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012general
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (20)

  • Pius Machafu Isundu v Lavington Security Guards Limited
    [2017] eKLR
  • Titus Muriuki Ndirangu v Beverly School of Kenya Limited
    [2022] eKLR
  • Republic -vs- Anarita Karimi Njeru
    [1979] eKLR
  • KKB v SCM & 5 others
    [Constitutional Petition 014 of 2020] [2022] KEHL 289 [KLR]
  • Sports and Recreation Commission v Sagittarius Wrestling Club & another
    2001 [2] ZLR 501 [J]
  • Makori Beatrice Kwamboka v Kenya Airways Limited
    [2021] eKLR
  • S. v Mhlungu
    [1995] [3] SA 867 [CC] 50
  • Lugo v Director of Public Prosecutions
    [2022] KEHC 10574 [KAR]
  • Chawira & others v Minister of Justice Legal and Parliamentary Affairs & others
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • COD & another -vs- Nairobi City Water & Sewerage Company Limited
    [2015] eKLR
  • Papinder Kaur Atwal -vs- Manjit Singh Amrit
    Nairobi Petition No. 236 of 2011
  • Re Application by Bahadur
    [1986] LRC [Const]
  • Harrikison v A.G.
    [1979] 3 WKR 62
  • Ashwander -vs- Tennessee Valley Authority
    297 U.S. 288, 347 [1936]
  • Thomas Sila Nzivo v Bamburi Cement Limited
    [2014]
  • JJ Okwaro & Co. Limited v Firearms Licensing Board
  • Dawala J. Jawara v Gambia
    ACMHPR 147/95 – 149/96
  • Jeremiah Gitau Kiereini v Capital Markets Authority and the Attorney General
    [2013] eKLR
  • Gladys J. Cherono v Board of Trustees NSSF & another
    [2021] eKLR
Jurisdiction invoked
Articles 22, 23 and 41 of the Constitution of Kenya 2010; Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Aliela v Kenton College Trust & another (Employment and Labour Relations Petition E084 of 2022) [2023] KEELRC 226 (KLR)", Case Analysis (2023). Petition dated 24th May 2022 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/226/eng@2023-01-26

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