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ELRCStruck Out(not stated in judgment)· [2023] KEELRC 820 (KLR)

Njue v Kenya Maritime Authority & another (Petition E012 of 2022) [2023] KEELRC 820 (KLR)

Employment and Labour Relations Court
28 March 2023
1,968 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 struck out a constitutional petition over unfair dismissal, confirming workers must first use the Employment Act route.

What this practically means

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Executive summary

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This was a ruling on a notice of preliminary objection by the respondents, Kenya Maritime Authority and its Board of Directors, against a petition filed by an employee who alleged that his interdiction and dismissal were effected by a board not properly constituted, and that his rights under Articles 41 and 47 of the Constitution were violated. The respondents objected that the petition did not comply with Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules and offended the doctrine of constitutional avoidance, since the dispute was essentially an unfair termination claim governed by statute. Relying on the Supreme Court's decision in Communication Commission of Kenya v Royal Media Services and the Court of Appeal in Sumayya Athmani Hassan and Gabriel Mutava, the court (M. Mbarũ J) held that where a matter is regulated by statute with adequate remedies - here the Employment Act, 2007, the Employment and Labour Relations Court Act, 2011 and the ELRC Procedure Rules - the constitutional route should be avoided. The petitioner had not alleged inadequacy of statutory remedies and admitted no constitutional interpretation was required. However, because he acted under an honest belief as to procedure, the petition was struck out rather than dismissed, with liberty to move the court afresh under the statutory framework, including by a Memorandum of Claim pleading constitutional violations under Rule 8. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the doctrine of constitutional avoidance bars a petition premised on unfair termination of employment

Holding

Yes - the claim is essentially an employment dispute fully regulated by the Employment Act and related legislation, so the constitutional route should be avoided; however the petition is struck out, not dismissed, with liberty to file a proper claim

Reasoning

The court restated the doctrine of avoidance/exhaustion per the Supreme Court in Communication Commission of Kenya and the Court of Appeal in Sumayya Athmani Hassan and Gabriel Mutava. Article 41 rights are enacted in the Employment Act and Labour Relations Act, which provide adequate remedy. The petitioner admitted no constitutional interpretation was required. Since he acted under an honest belief as to procedure, the petition is struck out rather than dismissed, allowing him to file a Memorandum of Claim.

p. 4
02

Whether the petition fails to comply with Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules

Holding

The Rule 10 objection was not equated to substantive law sufficient to warrant dismissal of the petition

Reasoning

The court found that the objections premised on Rule 10, being subsidiary legislation, could not be equated to the substantive law upon which the petition could be dismissed. The decisive ground was constitutional avoidance, not non-compliance with the procedural rule, and even on that ground the sanction was striking out with liberty to re-file, not outright dismissal.

p. 4
03

Whether a petitioner may cite constitutional violations within a Memorandum of Claim instead of a petition

Holding

Yes - a party may urge constitutional violations in a Memorandum of Claim under Rule 8 of the ELRC Procedure Rules, 2016

Reasoning

The court noted that the ELRC Procedure Rules guide parties on when to file a petition or a Memorandum of Claim, and that under a Memorandum of Claim a party is allowed to plead constitutional violations and frame orders sought under Rule 8. This preserves the petitioner's access to justice while respecting constitutional avoidance.

p. 4

Legal principles established

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  • Under the doctrine of constitutional avoidance, a court will decline to determine a constitutional issue where the matter may properly be resolved under another statutory mechanism
  • Where infringements of employment rights can found a claim under substantive labour law, the claim must be brought under that law and not under the Constitution
  • The constitutional route is appropriate only where statutory provisions are challenged as unconstitutional or their remedies are inadequate

Court orders

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  1. 1.The petition (as admitted to require no constitutional interpretation) is struck out
  2. 2.The petitioner is at liberty to move the court as appropriate under the Employment Act, 2007, the Employment and Labour Relations Court Act, 2011 and the Rules thereto
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 41, 47, 162(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 10
  • Employment Act2007
  • Employment and Labour Relations Court Act2011, Section 12
  • Employment and Labour Relations Court (Procedure) Rules2016, Rule 8 (and 2006 Rules referenced)
  • Labour Relations Actnot specified

Cases cited (11)

  • Communication Commission of Kenya & others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Sumayya Athmani Hassan v Paul Masinde Simidi
    [2019] eKLR
  • Isaac Makokha Okere v Mumias Outgrowers Sacco Society Limited & 9 others
    [2021] eKLR
  • Okoiti v Parliamentary Service Commission & 2 others; Speaker of the National Assembly & another (interested parties)
    Petition E166 of 2022
  • Mukisa Biscuits Manufacturing Limited v West End Distributors
    (1969) EA
  • Anthony Miano & others v Attorney General & others
    [2021] eKLR
  • United States International University (USIU) v Attorney General
    [2012] eKLR
  • Mugendi v Kenyatta University – Civil Appeal No 6 of 2012
    [2013] eKLR
  • Elias Kibathi & another v Attorney General
    [2021] eKLR
  • Jane Angila Obando v TSC & 2 others
    Petition No 4 of 2020
  • Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another
    [2016] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution read with Section 12 of the Employment and Labour Relations Court Act, 2011; Article 22 and 41 of the Constitution invoked by the petitioner

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, "Njue v Kenya Maritime Authority & another (Petition E012 of 2022) [2023] KEELRC 820 (KLR)", Case Analysis (2023). (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/820/eng@2023-03-28

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