Ibwaga & 84 others v Attorney General (Employment and Labour Relations Petition E071 of 2023) [2023] KEELRC 2802 (KLR)
The bottom line
#Kenya's Employment Court ruled it cannot hear a constitutional challenge to the Employment Act's three-year limit on suing for unpaid work dues unless tied to a real employer-employee dispute.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over a constitutional challenge to section 90 of the Employment Act
The court lacked jurisdiction. The constitutional validity of section 90 was a substantive claim under article 165(3)(d)(i) reserved to the High Court and did not arise from an employer-employee dispute within section 12 of the ELRC Act.
Relying on National Social Security Fund Board of Trustees v Kenya Tea Growers Association, the court held that constitutional issues may be determined by the ELRC only if they arise from an employer-employee dispute. The impugned section 90 of the Employment Act affected the litigation of such disputes but its constitutionality was not itself an employer-employee dispute. Words like 'including' in section 12(1) could not swallow a stand-alone constitutional claim reserved to the High Court.
Precision in pleading constitutional violations
The Petitioners failed to demonstrate how their rights or access to justice were infringed, and the objection based on the Mumo Matemu and Anarita Karimi Njeru threshold was sustained.
The Respondent contended, and the court accepted, that the petition merely reproduced constitutional provisions without evidence. The claimants' right of access to justice under article 48 was preserved since suits under section 90 of the Employment Act may be filed within 3 years of the cause of action, so no infringement was demonstrated.
Legal principles established
#- The ELRC may determine constitutional issues only if they arise from an employer-employee dispute; a free-standing constitutional challenge to the validity of a statute falls within the exclusive jurisdiction of the High Court under article 165(3)(d)(i)
- Jurisdiction is determined on the basis of the pleadings before consideration of the substantive merits
Court orders
#- 1.The preliminary objection dated 23rd June 2023 succeeded; the petition dated 12th April 2023 was dismissed for want of jurisdiction
- 2.Each party to bear their respective costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Act, No. 20 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ibwaga & 84 others v Attorney General (Employment and Labour Relations Petition E071 of 2023) [2023] KEELRC 2802 (KLR)", Case Analysis (2023). Petition dated 12th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2802/eng@2023-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.