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ELRCStruck OutPetition dated 25th November 2021· [2023] KEELRC 3168 (KLR)

Okumu v Catholic University of East Africa (Employment and Labour Relations Petition E187 of 2021) [2023] KEELRC 3168 (KLR)

Employment and Labour Relations Court
2 November 2023
OKOcharo Kebira
6,398 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, a Lecturer who served the Respondent university for twenty years on successive fixed-term contracts, filed a petition seeking an academic supervision allowance, salary for 24 months, and multiple heads of constitutional and other damages arising from the non-renewal of his contract, suspension over sexual harassment allegations, failure to claim his medical insurance award, and alleged defamation. He claimed breaches of fair labour practices, fair administrative action, legitimate expectation and natural justice. The Respondent opposed, arguing the petition was improperly constitutionalised, premature for failure to exhaust internal mechanisms (a pending appeal before the University Council), and that the fixed-term contract had expired without legitimate expectation of renewal. The court distilled five issues but found it unnecessary to consider them beyond the first. Applying the doctrine of constitutional avoidance, the court held that the grievances - procedural and substantive fairness of non-renewal, employment defamation and unpaid benefits - fell within the Employment Act and Fair Administrative Action Act and should have been pursued in an ordinary claim. A mere allegation of rights violation does not attract constitutional jurisdiction where statutory remedies exist. The court struck out the petition and ordered each party to bear its own costs, without determining the merits of the employment dispute.

Key legal issues

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01

Whether the petition met the threshold of a properly presented petition given the doctrine of constitutional avoidance

Holding

The petition failed the constitutional avoidance doctrine; the grievances were employment disputes properly litigable under the Employment Act and Fair Administrative Action Act

Reasoning

The court noted a post-2010 surge in constitutionalising every dispute, a practice courts abhor. Since the grievances concerned procedural and substantive fairness of non-renewal of a fixed-term contract, employment defamation and unpaid benefits, remedies lay under the Employment Act and Fair Administrative Action Act via an ordinary claim. A mere allegation of rights violation does not attract constitutional jurisdiction, so the petition was struck out.

p. 13

Legal principles established

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  • Where legislation is enacted to give effect to a constitutional right, a litigant cannot bypass that legislation and directly rely on the Constitution without challenging the legislation as constitutionally deficient
  • A mere allegation of violation of a right is not sufficient to attract constitutional jurisdiction in preference to statutory jurisdiction

Court orders

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

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41 (right to fair labour practices), Article 47 (fair administrative action), Article 50(1), Article 28, Article 159(2)(d), Article 48
  • Employment Actgeneral
  • Fair Administrative Action Actgeneral
  • Universities Actsection 35
  • Employment and Labour Relations Court Actgeneral
  • Labour Relations Actgeneral
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (21)

  • Severine Luyali v Ministry of Foreign Affairs & International Trade & 3 others
    [2014] eKLR
  • Egal Mohamed Osman v Inspector General of Police & 3 others
    [2015] eKLR
  • Justice Amraohael Mbogholi Msagha v The Chief Justice of Kenya & 7 others
    [2006] eKLR
  • Ahmed Ishiola Akande v Lilgate Nigeria Ltd
  • Health Professionals v MC Gown
  • Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & Another
    [2016] eKLR
  • Josphat Ndirangu v Henkel Chemical [EA] Limited
    [2013] eKLR
  • R v Anarita Karimi Njeru
    [1979] eKLR
  • Speaker of the National Assembly v Karume
    [2008] 1 KLR [EP]
  • Fleur Investment Limited v Commissioner of Domestic Taxes & Another
    [2018] eKLR
  • Samuel Chacha Mwita v Kenya Medical Research Institute
    [2014] 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 [s]
  • 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 Wambua Kituku v The Council of Legal Education and another
    Petition number E209 of 2022
  • SA Rugby (Pty) Ltd v CCMA & Others
    (2006) 27 ILJ 1041 (LC)
Jurisdiction invoked
Jurisdiction under the Constitution and the Employment and Labour Relations Court Act; petition struck out on the doctrine of constitutional avoidance

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Okumu v Catholic University of East Africa (Employment and Labour Relations Petition E187 of 2021) [2023] KEELRC 3168 (KLR)", Case Analysis (2023). Petition dated 25th November 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3168/eng@2023-11-02

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