Owenga v Office of the Director ofPublic Prosecutions Advisory BoardThe Office of the Director ofPublic Prosecutions Advisory Board (Petition E028 of 2023) [2023] KEELRC 3348 (KLR)
The bottom line
#A Kenyan court dismissed a dismissed prosecutor's constitutional petition, ruling employment disputes belong under the Employment Act, not constitutional litigation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner's constitutional rights (Articles 41, 47, 50 and 236(b)) were violated by the disciplinary process leading to her dismissal
No violation; the Petitioner received a notice to show cause, responded, and was invited to a disciplinary hearing with the right to be accompanied
The court found the Petitioner was notified of the reasons for disciplinary action, submitted two written responses, and was invited to a hearing where she could be accompanied by a person of her choice. She did not fault the timeframe or any aspect of the process. Her real complaint was the absence of extrinsic evidence, but the applicable standard of proof is the balance of probabilities, and her own written response admitted failing to pay for items, so CCTV footage was not required.
Whether the constitutional petition was the proper vehicle for the dispute (constitutional avoidance)
The petition was misguided; the dispute should have been pursued as a claim for unlawful termination under the Employment Act, 2007
Applying the Supreme Court's articulation of the avoidance principle in Communications Commission of Kenya and the Court of Appeal's decision in Gabriel Mutava, the court held that where adequate statutory forums exist, constitutional litigation should not be a thoroughfare for every common grievance. In employment matters the contract of employment, governed by statute, is the entry point.
Whether the Petitioner was entitled to the reliefs sought (reinstatement, damages, costs)
Reliefs could not issue since no constitutional violation was disclosed
The remedies sought were premised on the alleged constitutional violations. Having found that the disciplinary process accorded with due process and that no Articles 41, 47, 50 or 236(b) rights were breached, the court held the petition unmerited and dismissed it, denying reinstatement, damages and costs.
Legal principles established
#- The standard of proof in cases involving termination of employment is on a balance of probabilities, not beyond reasonable doubt; the employer need only prove reasons it genuinely believed to exist
- The doctrine of constitutional avoidance requires a court not to determine a constitutional issue where a matter may properly be decided on another basis; employment disputes should ordinarily begin with the contract/statutory forum
Court orders
#- 1.The Petition is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Constitution of Kenya (employment and labour relations jurisdiction); petition dated 9th February 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owenga v Office of the Director ofPublic Prosecutions Advisory BoardThe Office of the Director ofPublic Prosecutions Advisory Board (Petition E028 of 2023) [2023] KEELRC 3348 (KLR)", Case Analysis (2023). Petition dated 9th February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3348/eng@2023-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.