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ELRCStruck Out· [2023] KEELRC 2718 (KLR)

Kibiku v Oracle Technology Systems (Kenya) Limited (Employment and Labour Relations Petition 34 of 2020) [2023] KEELRC 2718 (KLR)

Employment and Labour Relations Court of Kenya
5 October 2023
OKOcharo Kebira
6,435 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, formerly employed by the Respondent as a Territory Sales Manager from 1st March 2017 until his termination on 28th March 2019, filed a constitutional petition claiming that in the course of his employment and eventual termination on grounds of poor performance, his rights under Articles 27 (equality and non-discrimination), 28 (dignity), 41 (fair labour practices) and 47 (fair administrative action) were violated. He sought declarations, 12 months' salary (KShs. 11,260,800), commissions, damages for discrimination and denial of dignity, interest and costs. He blamed his supervisor, Serge Blockmans, for sabotaging business closures, excluding him from meetings, and engineering his dismissal through an unjustified Performance Improvement Plan. The Respondent maintained that the termination followed a proper coaching plan, two PIPs, show-cause meetings, a disciplinary hearing and an appeal, all conducted per its policies, and that no constitutional rights were breached. The court framed four issues, chief among them whether the petition met the constitutional pleading threshold. Applying the Anarita Karimi standard, the court found the petition did not describe with reasonable precision how Articles 28, 41 and 47 were breached. It further held that the doctrine of constitutional avoidance applied: the grievances were essentially an employment dispute over unfair termination for poor performance, whose remedies lie under the Employment Act in an ordinary claim, not constitutional litigation. Accordingly, the petition was struck out with each party bearing its own costs, the court noting the Petitioner may litigate his claim elsewhere.

Key legal issues

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01

Whether the petition met the threshold of a properly crafted constitutional petition

Holding

The petition did not describe with reasonable precision how the rights under Articles 28, 41 and 47 were violated; only the Article 27 claim was arguable but still failed

Reasoning

Applying Anarita Karimi, the court held that the description of the alleged violation must unambiguously reveal a connection with the specific rights said to be infringed. Although the petition carried a heading of particulars, it did not reasonably describe violations of Articles 28, 41 and 47, and the Article 27 claim was itself defective.

p. 10
02

Whether the doctrine of constitutional avoidance barred the petition

Holding

Yes - the substantive remedies sought did not depend on the constitutional issues and ought to have been pursued as an ordinary employment claim

Reasoning

The court adopted the doctrine of constitutional avoidance as articulated in Communications Commission of Kenya v Royal Media Services and other authorities, holding that where a matter can be properly decided on another basis, the constitutional path is narrow and exceptional. The Petitioner's grievances were substantially about procedural and substantive fairness of termination for poor performance, remedies for which lie under the Employment Act.

p. 12

Legal principles established

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  • A party seeking constitutional relief must plead with a reasonable degree of precision the rights violated, the constitutional provisions, and how the violation occurred
  • Constitutional avoidance applies where the reliefs sought can be obtained under ordinary statutory remedies; not every grievance should be constitutionalized
  • Litigation based solely or substantially on workplace discrimination should be initiated as an ordinary claim under Section 5 of the Employment Act

Court orders

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  1. 1.The petitioner's petition is struck out
  2. 2.Each party to shoulder its own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 28, 41, 47, 48, 159(2)(d)
  • Employment ActSection 5, Section 49
  • Employment and Labour Relations Court ActNot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Practice and Procedure Rules of the Employment and Labour Relations CourtNot specified

Cases cited (17)

  • Barclays Bank of Kenya Ltd & Anor v Gladys Muthoni & 20 others
    (2018) eKLR
  • Ahmed Issack Hassan v Auditor General
    (2015) eKLR
  • Dawood and Another v Minister of Home Affairs & others
    (CST 35 99) (2020) ZALC
  • June Wairimu Machira v Mugo Waweru & Associates
    (2012) eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    Cause No. 823 of 2010; (2010) LLR 255 (ICK)
  • Edward Achongo Oyugi and 2 others v Attorney General
    (2019) eKLR
  • MWK & Advocates & Another v Attorney General & 3 others
    (2017) eKLR
  • Anerita Karimi v The Attorney General
    (1579) eKLR
  • KKB v SCM & 5 others
    [Constitutional Petition 014 of 2020] KEH 289 [KLR]
  • Sports and Recreation Commission v Sagittarius Wrestling Club and Anor
    [2001] [2] ZLR 501
  • Chewira & others v Minister of Justice Legal and Parliamentary Affairs & others
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • COD & another v Nairobi City Water & Sewerage Company Limited
    [2015] eKLR
  • Papinder Kaur Atwal v Masnjit Singh Amrit
    Nairobi Petition No. 236 of 2011
  • Re Application by Bahadur
    [1986] LRC [Cost.]
  • Harrison v A.G
    [1979] 3 WKR
  • Dr. Emmanuel Wambua Kituku v The Council of Legal Education & Anor
    ELRC Petition No. E209 of 2022
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act and the Constitution of Kenya 2010 (Articles 27, 28, 41 and 47 invoked by the Petitioner)

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, "Kibiku v Oracle Technology Systems (Kenya) Limited (Employment and Labour Relations Petition 34 of 2020) [2023] KEELRC 2718 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2718/eng@2023-10-05

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