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ELRCStruck Out(not stated in judgment)· [2023] KEELRC 3355 (KLR)

Ngunju & another v Kenya Forest Service & another (Employment and Labour Relations Appeal E007 of 2023) [2023] KEELRC 3355 (KLR)

Employment and Labour Relations Court
20 December 2023
OMOnesmus N Makau
916 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a constitutional petition against Kenya Forest Service because it never cited the constitutional provisions it claimed were violated.

What this practically means

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Executive summary

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Two employees of the Kenya Forest Service (1st respondent) petitioned the ELRC at Nyeri on 4th April 2023, challenging the 1st respondent's external advertisement dated 28th February 2023 for the position of Cadet Inspector. They sought a declaration that the advertisement was unlawful, unfair, discriminatory and unconstitutional, a mandatory injunction to stop the interviews and recruitment, rectification of the advertisement to favour graduate corporals and rangers, internal recruitment of inspector cadets per the KFS HR Policy Manual and Career Progression Guidelines, and general damages. They argued the 1st respondent was required to exhaust internal recruitment before external advertisement and relied on Articles 27, 41, 43, 47 and 73 of the Constitution in submissions. The respondents, through a Replying Affidavit of the Acting Chief Conservator of Forest, contended that internal recruitment had been exhausted through an April 2022 advertisement, shortlisting, interviews and promotions, and that the external advertisement was lawful and non-discriminatory. The court framed three issues: competence of the petition, alleged rights violations, and whether the reliefs were merited. Applying the Anarita Karimi Njeru threshold, the court held that although the petitioners pleaded stagnation and discrimination, the petition did not cite any constitutional provision alleged to have been violated or the manner of violation. The constitutional grounds raised in written submissions could not amend the pleadings, as parties are bound by their pleadings. On that ground alone the petition was struck out. Because it was public litigation, the petitioners were not condemned to pay costs. Judgment was delivered via Teams with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Competence of the constitutional petition

Holding

The petition failed the Anarita Karimi Njeru threshold because it did not cite the constitutional provisions violated nor the manner of violation

Reasoning

Although the petitioners pleaded stagnation and discrimination, the petition itself omitted the specific constitutional provisions infringed. The constitutional grounds raised in written submissions (Articles 27, 41, 43, 47, 73) could not cure this as submissions are not pleadings. Parties are bound by their pleadings and a court cannot travel beyond them. On this ground alone the petition was struck out.

p. 3
02

Whether the external advertisement violated the petitioners' rights

Holding

Not determined; the petition failed before reaching the merits

Reasoning

The court did not reach the question of whether the KFS violated the HR Policy Manual and Career Progression Guidelines by advertising externally without exhausting internal recruitment, since the petition was struck out on the competence threshold alone. The 1st respondent contended internal recruitment was completed in April 2022 with promotions effected.

p. 3

Legal principles established

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  • A constitutional petition must set out with reasonable precision the complaint, the provisions said to be infringed and the manner of infringement (Anarita Karimi Njeru threshold)
  • Parties are bound by their pleadings and a court cannot travel beyond them; submissions cannot amend pleadings

Court orders

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  1. 1.The petition is struck out for failure to meet the Anarita Karimi Njeru competence threshold
  2. 2.Each party not condemned to pay costs - petitioners not condemned to pay costs since the petition is public litigation

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 41, 43, 47, 73
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (1)

  • Anarita Karimi Njeru v Republic
    (1979) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (petition under Articles 27, 41, 43, 47 and 73 invoked; Article 23 jurisdiction of the High Court/ELRC) - as pleaded by petitioners

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, "Ngunju & another v Kenya Forest Service & another (Employment and Labour Relations Appeal E007 of 2023) [2023] KEELRC 3355 (KLR)", Case Analysis (2023). (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3355/eng@2023-12-20

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