Masoud (for and on behalf of employees of KRA) v Kenya Revenue Authority & 2 others (Cause E088 of 2022) [2023] KEELRC 1207 (KLR)
The bottom line
#Kenya's Employment Court ruled KRA must face a union-related claim by employees, rejecting all attempts to throw the case out before a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Precision of pleading constitutional claims (Anarita Karimi Njeru threshold)
The Anarita Karimi Njeru precision threshold applies to constitutional petitions; a Memorandum of Claim under Rule 7(3) is a proper vehicle and the claim was properly before the court
The court noted the claimant filed a Memorandum of Claim, not a petition. Rule 7(3) of the ELRC (Procedure) Rules, 2016 allows enforcement of constitutional rights through a Statement of Claim. Absent a prayer for invalidity of a statute, the petition route is unnecessary; the claim invoking Articles 36 and 41 was properly pleaded and should be heard on the merits.
Res judicata and sub judice
The prior BIFU v KRA litigation concerned check-off rights under the repealed Trade Disputes Act and is founded on different facts from the present claim; res judicata does not apply
The Court of Appeal case arose from Misc. Application No. 1683 of 2004 where BIFU sought mandamus to compel check-off deductions. The present claim concerns the claimant's recruitment of KRA employees into KUCFAW, BIFU, and frustrated attempts to register the Tax Collectors Union. The factual foundations differ, so a hearing on the merits is required.
Locus standi
The claimant has standing under Article 22 read with Article 258 as a person acting on behalf of others
The claimant sued for and on behalf of KRA employees to address threats of infringement of their constitutional rights, which Article 22(2) and Article 258 permit. The reliance on Sumayya Athmani Hassan confirmed that standing before the ELRC via a Memorandum of Claim is proper where no statutory invalidity is raised.
Incapacity to comply under Article 24
Prospective and speculative; cannot be determined before hearing
No response had been filed. The court cannot pre-empt the outcome or gag final orders on the assertion that respondents would be unable to comply; that would deny the claimant a fair hearing on the merits.
Legal principles established
#- A claimant before the ELRC may raise constitutional claims in a Memorandum of Claim under Rule 7(3) of the ELRC (Procedure) Rules, 2016 without invoking the constitutional petition route where no declaration of invalidity of a statute is sought
- Standing to sue is proper under Article 22 read with Article 258 for a person acting on behalf of others in the public interest
- Whether orders sought would be incapable of compliance under Article 24 cannot be determined before hearing the claim on the merits
Court orders
#- 1.The preliminary objections are found without merit and dismissed with costs to the claimant
- 2.The respondents are given 14 days to comply with Rule 13 of the Employment and Labour Relations Court (Procedure) Rules, 2016
- Jurisdiction invoked
- Section 12(1) Employment and Labour Relations Court Act, 2011 challenged by respondents; court's jurisdiction under ELC/ELRC Procedure Rules, 2016 Rule 7(3) affirmed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masoud (for and on behalf of employees of KRA) v Kenya Revenue Authority & 2 others (Cause E088 of 2022) [2023] KEELRC 1207 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1207/eng@2023-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.