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ELRCDismissedNot stated in judgment (petition consolidated with Notice of Motion dated 08.07.2021)· [2023] KEELRC 2943 (KLR)

Khisa v Kenya Plantation and Agricultural Workers Union (Petition E25 of 2023) [2023] KEELRC 2943 (KLR)

Employment and Labour Relations Court
17 November 2023
BOByram Ongaya
1,325 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a workplace rights petition claiming constitutional violations must proceed to a full hearing rather than being dismissed on a technicality.

What this practically means

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Executive summary

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The respondent filed a notice of preliminary objection dated 24.03.2023 seeking dismissal of the petitioner's petition on the ground that the Employment and Labour Relations Court lacked jurisdiction. The respondent argued that the petition violated the constitutional principle of avoidance, raised no constitutional questions, and improperly constitutionalized an ordinary employer-employee dispute, relying on Communication Commission of Kenya v Royal Media Services and Francis Gathugu v Kenyatta University, and invoked Owners of Motor Vessel 'Lilian S' on jurisdiction. The petitioner, acting in person, opposed the objection through a replying affidavit sworn on 28.04.2023, contending that the petition raised triable issues on breach of his employment contract under section 12(1)(a) of the ELRC Act and violations of Articles 41, 50(1) and 47 of the Constitution, that the cited authorities were distinguishable, and that the objection failed the Mukisa Biscuits threshold as it targeted form rather than law. The court, per Byram Ongaya, Principal Judge, framed the sole issue as whether the petition was trapped by constitutional avoidance. Examining the pleadings, the court found the petitioner expressly alleged violations of Articles 41, 50(1) and 47(1) and sought declarations, so whether those rights were violated was a disputed matter requiring a full hearing on evidence. The preliminary objection failed the threshold and was dismissed with costs in the cause, with directions for the parties to fix the matter for further directions for expeditious determination of the petition.

Key legal issues

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01

Whether the principle of constitutional avoidance bars the petition

Holding

The preliminary objection fails because the petition expressly alleges violations of Articles 41, 50(1) and 47(1) and seeks declarations; the disputed violations must go to full hearing.

Reasoning

The Court examined the pleadings and found that the petitioner alleged violations of rights and fundamental freedoms in paragraphs 36 to 45 of the petition and prayed for declarations of violation. Determining whether those rights were violated would require taking evidence, so the issues are triable and cannot be resolved on a preliminary objection. The objection therefore fails to meet the applicable threshold.

p. 3
02

Whether the preliminary objection qualifies as one on a point of law

Holding

The objection fails the Mukisa Biscuits threshold and does not defeat the Court's jurisdiction under section 12 of the ELRC Act.

Reasoning

The petitioner contended the objection raised procedural technicality rather than pure law, and under Article 159 the Court must not unduly regard procedural technicalities. The Court found the petition raises triable issues on breach of the employment contract and alleged constitutional violations, matters within the Court's jurisdiction under section 12(1)(a) and (2) of the ELRC Act, so the objection collapses.

p. 3

Legal principles established

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  • A preliminary objection cannot dispose of a petition where the alleged violation of rights is in dispute and requires evidence at a full hearing

Court orders

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  1. 1.The preliminary objection dated 24.03.2023 is dismissed with costs in the cause
  2. 2.Parties to fix the matter for further directions for expeditious determination of the petition

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 63(c)
  • Civil Procedure Rules 2010Order 51 rule 1
  • Employment & Labour Relations Court (Procedure) Rules 2016Rule 2 (Legal Notice No. 146 of 2016)
  • Employment & Labour Relations Court ActSections 12(1)(a), 12(2) and 3
  • Constitution of KenyaArticles 41, 47, 47(1), 50(1) and (2), 159

Cases cited (7)

  • Communication Commission of Kenya & 5 others versus Royal Media Services Ltd
    Supreme Court of Kenya at Nairobi Petition No. 14 of 2014
  • Francis Gathugu Vs. Kenyatta University
    Civil Appeal No. 279 of 2013
  • Owners of Motor Vessel 'Lilian S' versus Caltex Oil (Kenya)
    (1989) 1 KLR 1
  • United States International University Vs. Attorney General & 2 others
    (2012) eKLR
  • Karisa Chengo & 2 others Vs. Republic
    Civil Appeal No. 44, 45 & 76 of 2014 (2015) eKLR
  • Mukisa Biscuits Co. Ltd Vs. West-end Distributors Ltd
    (1966) EA 696
  • Avatar Sing Bhamra & Another V. Oriental Commercial Bank
    Kisumu High Court Civil Case No. 53 of 2004
Jurisdiction invoked
Sections 12(1)(a) and 12(2) of the Employment and Labour Relations Court Act; Article 159 of the Constitution invoked on substantive justice

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, "Khisa v Kenya Plantation and Agricultural Workers Union (Petition E25 of 2023) [2023] KEELRC 2943 (KLR)", Case Analysis (2023). Not stated in judgment (petition consolidated with Notice of Motion dated 08.07.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2943/eng@2023-11-17

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