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ELRCDismissedNot stated in the judgment· [2023] KEELRC 3403 (KLR)

Otieno v Muranga University of Technology & another; Universities Academic Staff Union (UASU), National Office & 2 others (Interested Parties) (Employment and Labour Relations Petition E174 of 2023) [2023] KEELRC 3403 (KLR)

Employment and Labour Relations Court
21 December 2023
1,652 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 dismissed an attempt to strike out a constitutional petition, confirming preliminary objections can't be used to smuggle in factual arguments.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually by Anna Ngibuini Mwaure, Judge, on 21st December 2023, determined a Notice of Preliminary Objection dated 27th September 2023 filed by the 2nd Respondent against the Petitioner's Petition dated 12th September 2023. The 2nd Respondent argued that the court lacked jurisdiction over what were in substance employment contract disputes dressed up as constitutional violations, that the Petitioner ought to have filed an ordinary claim, and that the Petition offended Order 1 rule 3 of the Civil Procedure Rules 2010, and sought striking out with costs. The Petitioner countered that the court, being a specialised court of equal status to the High Court under Article 162(2)(a), was clothed with jurisdiction under Articles 22(1), 23(1) and (3), 165(3)(b) and 258 of the Constitution; that an alternative remedy did not lock out constitutional redress; and that the objection raised factual matters contrary to the Mukisa Biscuit principles. The court applied Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and Oraro v Mbaja, holding that a preliminary objection must raise a pure point of law capable of terminating the suit without factual inquiry. Since the objection required the court to interrogate the merits of the Petition, it did not qualify and was found unmerited. The objection was dismissed with costs in the cause.

Key legal issues

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01

Whether the 2nd Respondent's preliminary objection, contending that the court lacks jurisdiction over employment contract disputes pleaded as constitutional violations and that the Petition offends Order 1 rule 3 of the Civil Procedure Rules, is merited

Holding

The objection was not merited because it raised factual issues requiring assessment of the Petition's merits rather than pure points of law; it was dismissed with costs in the cause

Reasoning

Applying the Mukisa Biscuit and Oraro v Mbaja principles, the court held that a preliminary objection must raise a pure point of law capable of terminating the suit without ascertaining facts or exercising discretion. The objection here required the court to go into the merits of the Petition to determine whether the grievances arose from ordinary employment contracts or constitutional violations. Such factual interrogation disqualifies it as a true preliminary objection.

p. 4

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or judicial discretion exercised
  • A preliminary objection must be capable of terminating a suit in its entirety; if the court must interrogate facts or exercise discretion, it does not qualify
  • Whether a dispute founded on employment contracts should have been brought as an ordinary suit rather than a constitutional petition is a question of fact going to the merits, not a pure point of law

Court orders

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  1. 1.The Notice of Preliminary Objection dated 27th September 2023 is dismissed
  2. 2.Costs are in the cause
Jurisdiction invoked
Articles 162(2)(a), 23(1) and (3), 165(3)(b), 22(1) and 258 of the Constitution of Kenya

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, "Otieno v Muranga University of Technology & another; Universities Academic Staff Union (UASU), National Office & 2 others (Interested Parties) (Employment and Labour Relations Petition E174 of 2023) [2023] KEELRC 3403 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3403/eng@2023-12-21

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