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ELRCPartially AllowedConstitutional Petition No. 6 of 2022· [2023] KEELRC 1930 (KLR)

Jitegemee Sacco Society Limited v County Government of Mombasa & another (Constitutional Petition 6 of 2022) [2023] KEELRC 1930 (KLR)

Employment and Labour Relations Court
31 July 2023
1,937 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan Sacco recovered over KES 206 million in unremitted member dues, but the court refused constitutional damages because it was really just a money claim.

What this practically means

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Executive summary

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The Petitioner, a Sacco Society whose members' dues were deducted by their employer (the Respondents) but not remitted, filed a constitutional petition seeking declarations that the failure to remit contravened Articles 10, 41 and 47 of the Constitution and the Fair Administrative Actions Act, judgment of Ksh. 206,928,312, mandamus, interest, general damages and costs. The petition, certified urgent in April 2022, was repeatedly taken out for court-encouraged negotiations at the Petitioner's own request; no response was ever filed. When the Respondents belatedly filed submissions addressing matters of fact, the court held, applying the Court of Appeal in Daniel Toroitich Arap Moi and KUDHEIHA v North Beach Hotel, that submissions cannot substitute for a response or evidence. The court found the petition raised no constitutional issue: it was a simple money claim that should have been instituted as an ordinary claim, and on the principle in Sammaya Athman Hassan, litigants cannot found causes of action directly on the Constitution where statutory remedies exist. The declaratory reliefs and general damages were declined, but judgment was entered for the Petitioner against the Respondents jointly and severally for Ksh. 206,928,312, with a mandamus compelling payment within sixty days failing which execution may issue, interest at court rates from the date of judgment, and costs to the Petitioner.

Key legal issues

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01

Whether an unremitted-check-off-dues money claim can be brought as a constitutional petition

Holding

No - the petition raised no constitutional issue and was treated as an ordinary claim

Reasoning

The court held parties are bound by their pleadings, and the pleaded claim was a simple money claim by a Sacco for unremitted deductions from its members. It raised no question of interpretation or application of the Constitution and demonstrated no violation of fundamental rights. Following the Court of Appeal and Supreme Court principles, where adequate statutory remedies exist a litigant cannot found a cause of action directly on the Constitution.

p. 4
02

Whether the Petitioner is entitled to judgment on an unopposed money claim

Holding

Yes - the undisputed evidence on a balance of probability established that the sum claimed is owed

Reasoning

The suit was undefended; the Respondents never filed a response despite directions. Their late submissions addressed matters of fact, which cannot substitute for a response or evidence. The Petitioner's documentary evidence, including admissions of the debt and statutory demand notices, established the debt on a balance of probability, entitling the Petitioner to judgment for the full claimed sum.

p. 4
03

Effect of filing submissions without a response to the petition

Holding

Submissions cannot take the place of evidence or a response; they are relevant only on pure points of law

Reasoning

The Respondents filed no response but late submissions addressing facts. Citing the Court of Appeal in Daniel Toroitich Arap Moi and the Industrial Court in KUDHEIHA v North Beach Hotel, the court held submissions are 'marketing language' and do not constitute evidence, and where no response is filed submissions are relevant only to pure points of law that could be raised by preliminary objection.

p. 2

Legal principles established

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  • Submissions, written or oral, cannot be a substitute for a response to a petition, suit or application; they can only address pure points of law akin to a preliminary objection where no response has been filed
  • Where legislation has been enacted to give effect to a constitutional right, a litigant may not found a cause of action directly on the constitution without challenging the legislation or showing its remedies are inadequate

Court orders

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  1. 1.Judgment entered for the Petitioner against the Respondents jointly and severally for the sum of Ksh. 206,928,312
  2. 2.An order of mandamus compelling the Respondents to pay the said sum within sixty (60) days from the date of judgment, failing which execution proceedings may issue
  3. 3.Interest on the awarded sum at Court rates from the date of the judgment
  4. 4.Costs of the petition awarded to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 41(2), (4) and (5), 47
  • Fair Administrative Actions Act
  • Employment Act
  • Labour Relations Act
  • Public Officers Ethics Act

Cases cited (5)

  • Daniel Toroitich Arap Moi -vs- Mwangi Stephen Murithi & Another
    [2014] eKLR
  • Union of Domestic, Hotels, Education Institutions and Hospital Workers (KUDHEIHA) -vs- North Beach Hotel
    [2015] eKLR
  • Sammaya Athman Hassan -vs- Paul Masinde Simidi & Another
    [2019] eKLR
  • Barbara De Klerk (supra)
  • Communication's Commission Case (supra)
Jurisdiction invoked
Petition alleging violation of Articles 10, 41(2), (4), (5) and 47 of the Constitution of Kenya 2010

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, "Jitegemee Sacco Society Limited v County Government of Mombasa & another (Constitutional Petition 6 of 2022) [2023] KEELRC 1930 (KLR)", Case Analysis (2023). Constitutional Petition No. 6 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1930/eng@2023-07-31

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