Muli v Kenya Water Institute & 2 others (Petition E225 of 2022) [2023] KEELRC 942 (KLR)
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
#Key legal issues
#Jurisdiction of the ELRC over constitutional issues in employment disputes
The ELRC has jurisdiction to entertain constitutional petitions arising from employment disputes that raise a constitutional question.
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.
Application of the principle of constitutional avoidance
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.
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.
Whether the Petition should be struck out
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.
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.
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.Preliminary objection on jurisdiction dismissed
- 2.Court declined to hear the matter as a Constitutional Petition on the principle of constitutional avoidance
- 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.No order as to costs
- 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.