Araru v Judicial Service Commission (Employment and Labour Relations Petition E002 of 2023) [2023] KEELRC 2598 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employee offered an alternative job during a restructuring has not been made redundant and cannot claim redundancy dues.
What this practically means
#Executive summary
#Key legal issues
#Competence of the constitutional petition
The petition did not meet the Anarita Karimi Njeru precision threshold, but the court nonetheless determined the matter on the merits.
The respondent raised the competence objection only in submissions, not pleadings. The court found that the petitioner cited Articles 27, 28, 41 and 47 but failed to plead with precision how each was violated; the complaint really concerned unlawful redundancy, a matter that did not require constitutional elevation. The court nevertheless proceeded to consider the merits rather than ending the case there.
Whether the petitioner's employment was terminated on account of redundancy
No redundancy occurred because the petitioner did not lose his job; he was given an alternative position in the new grading structure.
Applying the statutory definition of redundancy in section 2 of the Employment Act, the court held the petitioner had not lost employment. The organizational review merely exposed him to redundancy; like other affected employees he was offered an alternative job, with salary and terms retained except frozen annual increments. Since no redundancy was proved, alleged procedural failures under section 40 were irrelevant.
Whether the organizational review violated Articles 27, 28, 41 and 47
No violation was proved; the process was fair, participatory, and the outcome a fair balancing of the respondent's mandate and the petitioner's interests.
The court found the review was undertaken professionally with a consultant, involved all staff through questionnaires, interviews, a job evaluation committee and stakeholder engagement, and included a meeting with affected staff. The respondent retained the petitioner's salary at JSG 6 and promised promotion upon acquiring qualifications. Alleged age discrimination was not established; affected employees without qualifications were redeployed across the board.
Legal principles established
#- Redundancy cannot arise where the employer has provided the employee with an alternative job to prevent or mitigate the effect of redundancy.
- A constitutional petition must set out with reasonable precision the provision infringed and the manner of infringement (Anarita Karimi Njeru threshold).
Court orders
#- 1.The Amended petition is dismissed with no costs, considering that the parties are still in an employment relationship.
- Jurisdiction invoked
- Article 23(1) of the Constitution (invoked by the petitioner)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Araru v Judicial Service Commission (Employment and Labour Relations Petition E002 of 2023) [2023] KEELRC 2598 (KLR)", Case Analysis (2023). Petition (amended 24th March 2023), Employment and Labour Relations Court at Nyeri. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2598/eng@2023-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.