Namenya v Craft Silicon Limited & another (Employment and Labour Relations Petition E076 of 2022) [2023] KEELRC 2721 (KLR)
The bottom line
#Kenya's Employment Court struck out a challenge to the Gazette Notice capping employment claims magistrates can hear, confirming employers and employees must first use existing procedures.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC to determine the constitutionality of Gazette Notice No. 6024
The ELRC has jurisdiction to interrogate the constitutionality of the Gazette Notice because the notice targets employment matters and is directly connected with employment and labour relations.
The Court traced the establishment of the ELRC under Article 162(2) and Section 12 of the ELRC Act, 2011, adopting a purposive lens. Since the Gazette Notice allocated employment disputes to magistrates' courts, its constitutionality was not remote from employment matters. The 2nd Respondent's contention that only the High Court could determine the issue under Article 165(5) was rejected as ignoring the purpose and history of the specialised court.
Constitutionality of Gazette Notice No. 6024 as an impediment to access to justice
The Gazette Notice is not unconstitutional; it was reasonable, well-intentioned and in furtherance of the right of access to justice under Article 48.
The Court relied on the Court of Appeal in Law Society of Kenya Nairobi Branch v Malindi Law Society and Watson Burugu v Attorney General, which had declined to find the Notice an impediment to access to justice. The Petitioner's statistics from KNBS and KRA were introduced only in submissions without being pleaded, hence unhelpful and speculative. Declaring the Notice unconstitutional would upset binding earlier decisions.
Whether the petition met the threshold of a properly crafted constitutional petition
The petition failed the precision threshold and was an abuse of constitutional litigation; the remedy was striking out under the doctrine of constitutional avoidance.
Citing Anarita Karimi Njeru and Julius Meme v Republic, the Court held that the Petitioner merely recited constitutional articles without explaining the manner of violation. Her grievances about summary dismissal concerned procedural fairness under the Employment Act and belonged in an ordinary claim. Following Mativo J in KKB v SCM and other authorities, courts will avoid constitutional questions where alternative remedies exist.
Legal principles established
#- Once a jurisdictional issue is raised, a court must determine it as a preliminary issue before proceeding further.
- The Employment and Labour Relations Court has jurisdiction to determine constitutional issues, including the constitutionality of an instrument, so long as the issue is not remotely but genuinely connected with employment or labour relations.
- Submissions are not a substitute for evidence; parties are bound by their pleadings in an adversarial system.
- A constitutional petition must plead with reasonable precision the provisions violated and the manner of violation; where an alternative remedy exists under statute, the doctrine of constitutional avoidance applies.
Court orders
#- 1.The petitioner's petition is struck out.
- 2.Each party is to bear its own costs.
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namenya v Craft Silicon Limited & another (Employment and Labour Relations Petition E076 of 2022) [2023] KEELRC 2721 (KLR)", Case Analysis (2023). Petition dated 6th May 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2721/eng@2023-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.