Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherELRC Petition No E226 of 2023 (related matter)· [2023] KEELRC 942 (KLR)

Muli v Kenya Water Institute & 2 others (Petition E225 of 2022) [2023] KEELRC 942 (KLR)

Employment and Labour Relations Court
27 April 2023
2,886 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirms it can hear constitutional claims in workplace disputes, but will push litigants to ordinary employment law routes first.

What this practically means

#

Executive summary

#
The Petitioner, a former employee of the 1st Respondent whose contract was terminated on December 19, 2022, filed a Constitutional Petition alleging procedural irregularities in the disciplinary process, including that the 3rd Respondent instigated proceedings, acted as accuser, prosecutor and adjudicator, that no reasons were disclosed in the termination letter, that no investigation report or opportunity to cross-examine was furnished, and that his rights under Articles 41 and 47 were violated. He sought largely declaratory reliefs. The Respondents filed a preliminary objection contending that the court lacked jurisdiction to entertain the dispute as a constitutional petition because it is founded on an employer-employee relationship. The court (Manani J) held that the ELRC has jurisdiction to entertain constitutional petitions arising from employment disputes that raise a constitutional question, relying on Rule 7 of the ELRC (Procedure) Rules, 2016 and the Court of Appeal decision in Judicial Service Commission v Gladys Boss Shollei. The objection on jurisdiction therefore failed. The court distinguished James Mukuha Gichane as decided under the old constitutional dispensation before labour rights were entrenched. However, applying the principle of constitutional avoidance, and following KKB v SCM and Sumayya Athmani Hassan, the court declined to determine the matter as a constitutional petition, holding that the Employment Act, 2007 and Fair Administrative Action Act, 2015 prima facie provide adequate remedies and that the petition should have been filed as an ordinary Claim. The court declined to strike out the petition, gave the Petitioner 60 days to reposition the matter, failing which it would stand dismissed on the principle of avoidance, and made no order as to costs.

Key legal issues

#
01

Jurisdiction of the ELRC over constitutional issues in employment disputes

Holding

The ELRC has jurisdiction to entertain constitutional petitions arising from employment disputes that raise a constitutional question.

Reasoning

Rule 7(1) & (3) of the ELRC (Procedure) Rules, 2016 expressly permits enforcement of constitutional rights in suits before the ELRC. The Court of Appeal in JSC v Gladys Boss Shollei, per Okwengu, GBM Kariuki and Kiagi JJA, confirmed that the court may determine constitutional issues intertwined with labour relations litigation. The mere fact a dispute stems from employment does not oust constitutional jurisdiction.

p. 3
02

Application of the principle of constitutional avoidance

Holding

Although the court has jurisdiction, it declined to pronounce itself on the dispute as a constitutional petition because the Employment Act and Fair Administrative Action Act prima facie provide adequate remedies.

Reasoning

Constitutional avoidance directs a court to decline a constitutional pronouncement where the matter is resolvable under another legal regime. The petitioner did not plead that the statutory framework was inadequate; the dispute ought to have been filed as an ordinary Claim. Avoidance is not a jurisdictional bar, so the preliminary objection still fails.

p. 6
03

Whether the Petition should be struck out

Holding

The court declined to strike out the Petition, striking out being a draconian measure of last resort, and instead gave the Petitioner 60 days to move the court appropriately.

Reasoning

Striking out pleadings is reserved for hopeless cases beyond redemption by amendment (SDV Transami v Steve Andrade). Since the court has jurisdiction, striking out for want of jurisdiction was unwarranted; instead the petition stands dismissed on the principle of avoidance if not repositioned within 60 days.

p. 6

Legal principles established

#
  • The ELRC has jurisdiction to entertain Constitutional Petitions arising from employment disputes so long as they raise a constitutional question for determination
  • Constitutional avoidance is distinct from jurisdiction; a litigant should not found a cause of action directly on the Constitution where ordinary legislation provides adequate remedy

Court orders

#
  1. 1.Preliminary objection on jurisdiction dismissed
  2. 2.Court declined to hear the matter as a Constitutional Petition on the principle of constitutional avoidance
  3. 3.Petitioner at liberty to move the court as appropriate, failing which the matter shall stand dismissed on the lapse of the 60th day from the date of the order
  4. 4.No order as to costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 20, 41, 47, 162(2)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7(1) & (3); Rule 28(3)
  • Employment ActGeneral
  • Fair Administrative Action Act, 2015General
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012General
  • Labour Relations ActGeneral
  • Public Officers Ethics ActGeneral

Cases cited (6)

  • Judicial Service Commission v Gladys Boss Shollei & another
    [2014] eKLR
  • James Mukuha Gichane v National Hospital Insurance Fund & 3 others
    [2017] eKLR
  • KKB v SCM & 5 others
    (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR)
  • Harrikson v Attorney General of Trinidad & Tobago
    (1980) AC 265
  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR
  • SDV Transami (K) Limited v Steve Andrade
    [2022] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution; Rule 7(1) & (3) of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muli v Kenya Water Institute & 2 others (Petition E225 of 2022) [2023] KEELRC 942 (KLR)", Case Analysis (2023). ELRC Petition No E226 of 2023 (related matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/942/eng@2023-04-27

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