Riaga v Kenya Water Institute & 2 others (Petition E226 of 2022) [2023] KEELRC 1045 (KLR)
The bottom line
#Kenya's Employment Court can hear constitutional petitions about employment disputes, but only if ordinary employment laws cannot fully resolve the complaint.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over constitutional petitions arising from employment disputes
The ELRC has jurisdiction to handle constitutional issues arising from employer-employee disputes; the preliminary objection fails
Rule 7(1) & (3) of the ELRC (Procedure) Rules, 2016 expressly contemplates petitions and enforcement of constitutional rights in suits before the ELRC. Court of Appeal authority in Judicial Service Commission v Gladys Boss Shollei confirms this jurisdiction. The mere fact a dispute stems from employment does not preclude a constitutional issue being raised through a petition.
Application of the doctrine of constitutional avoidance
The court declines to determine the matter as a Constitutional Petition because the grievances can be adequately addressed under the Employment Act, 2007 and the Fair Administrative Action Act, 2015
A petitioner invoking the Constitution in lieu of ordinary statute remedies must plead that the statute is inadequate in some respect. The Petitioner did not suggest the statutory framework is incapable of redressing his grievance, so the matter ought to have been filed as an ordinary Claim. Avoidance is not a jurisdictional bar, so the objection premised on lack of jurisdiction fails.
Whether the Petition should be struck out
The Petition is not struck out; the Petitioner is given 60 days to move the court appropriately, failing which the matter stands dismissed
Striking out pleadings is a draconian step of last resort reserved for hopeless pleadings beyond redemption by amendment. Since the court has jurisdiction, the respondents' request to strike out for want of jurisdiction is refused, but the court will not hear the petition in its current constitutional form.
Legal principles established
#- The ELRC has jurisdiction to entertain Constitutional Petitions arising from employment disputes so long as they raise a constitutional question related to the dispute
- Constitutional avoidance is distinct from jurisdiction; a court may decline to pronounce on a dispute constitutionally if it can be resolved under another regime of law
Court orders
#- 1.The preliminary objection by the respondents is without merit and is dismissed insofar as it is premised on absence of jurisdiction
- 2.The court declines to hear the matter as currently presented as a Constitutional Petition, on the principle of constitutional avoidance
- 3.The Petitioner is at liberty to move the court as appropriate, failing which the matter shall stand dismissed upon lapse of the 60th day from the date of the order
- 4.There is 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, "Riaga v Kenya Water Institute & 2 others (Petition E226 of 2022) [2023] KEELRC 1045 (KLR)", Case Analysis (2023). ELRC Petition (related to ELRC Petition No. E 225 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1045/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.