Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition dated 27th October 2022 (Kisumu)· [2024] KEELRC 904 (KLR)

Osewe & another (Suing on their Own Behalf and on Behalf of 144 others) v County Government of Kisumu & another (Petition E041 of 2022) [2024] KEELRC 904 (KLR)

Employment and Labour Relations Court
25 April 2024
3,338 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The Employment Court struck out a Kshs 58 million unpaid dues claim because a constitutional petition was the wrong route; the retirees can still sue through an ordinary claim.

What this practically means

#

Executive summary

#
Two petitioners, on their own behalf and on behalf of 84 other former employees and retirees of the defunct Kisumu County Council (deployed in 1998 to Nyando County Council and Ahero Town Council), petitioned against the non-payment of dues amounting to Kshs 58,247,822 accruing from 1998 to 2012. They alleged violations of Articles 2(1) & (2), 27, 28, 30 and 48 of the Constitution, and sought declarations, payment of the dues, general and exemplary damages, interest and costs, arguing that Kisumu Municipal Council workers were paid to their exclusion. The Respondents opposed, contending the petition was vague, defective, an abuse of process, and that liabilities of defunct local authorities required vetting and verification. In a judgment delivered on 25th April 2024, C. N. Baari J framed three issues. On proof of violation, the court found the petitioners had not discharged the higher evidential burden for constitutional claims, nor proved differential treatment to sustain the discrimination claim. On constitutional avoidance, the court held that claims for unpaid salaries require intense factual inquiry - including cross-examination of document makers and per-petitioner proof of entitlements - best handled by an ordinary claim rather than a petition. The petition was struck out as offending the doctrine of constitutional avoidance, with no orders on costs. The petitioners retain the option of pursuing their dues through an ordinary claim.

Key legal issues

#
01

Whether the Petitioners proved violation of Articles 27, 28, 30 and 48 of the Constitution

Holding

No violation was proved; the Petitioners did not discharge the evidential burden.

Reasoning

Although the Petitioners produced appointment letters, pay slips and retirement notices showing they were employees, they did not lay substantial material proving unconstitutional treatment. They failed to show that Kisumu Municipal Council workers were paid equivalent dues to their exclusion, and did not demonstrate how dignity, forced labour or access to justice rights were infringed. The standard of proof for constitutional violations is higher than the ordinary civil standard, and the petition also lacked the specificity required by Anarita Karimi Njeru.

p. 6
02

Whether the petition offends the doctrine of constitutional avoidance

Holding

Yes; the petition was struck out.

Reasoning

The claim for unpaid salaries and benefits requires an intense factual inquiry - proof of amounts owed per petitioner, appointment and retirement dates, and representation of deceased petitioners - which cannot be conducted in a constitutional petition. Following Bickle, S v Mhlungu and Ashwander, where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked. The proper forum is an ordinary claim allowing cross-examination of document makers.

p. 7

Legal principles established

#
  • A claim that can be disposed of without recourse to the Constitution should not be brought as a constitutional petition; the doctrine of constitutional avoidance applies
  • The burden of proof in constitutional claims is higher than the ordinary civil balance of probability
  • A petitioner must plead with specificity the rights infringed and demonstrate the manner of infringement
  • For a discrimination claim to succeed, differential treatment of persons in the same category must be proved

Court orders

#
  1. 1.The petition is struck out for offending the doctrine of constitutional avoidance
  2. 2.No orders on costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 2(1) & (2), 3, 22, 27(1) & (2), 28, 30, 48; Section 15, Schedule 6
  • Transition to Devolved Government Act, 2012Sections 3(d), 7(e) to (h), Schedule 6
  • Oaths and Statutory Declarations ActNot specified
  • Evidence ActSections 70 to 73, 80

Cases cited (20)

  • Irene Wangari Gacheru & 6 others v Attorney General
    (2017) eKLR
  • Simon Kimani Gitura & 2 others v Administrator, Thika Sub County
    [2016] eKLR
  • VMK v CUEA
    [2013] eKLR
  • Daniel Musinga t/a Musinga & Co. Advocates v Nation Newspapers Limited
    (2006) eKLR
  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR / 1979 eKLR
  • Evans Ladtema Muswahili v Vihiga Public Service Board and 2 Others, Marley Ezekiel Ayiego (Interested Party)
    [2021] eKLR
  • Nelson Andayi Havi v Law Society of Kenya & 3 others
    [2018] eKLR
  • Robert Waweru and Three Others v Director of Public Prosecution and Others
    Nairobi Petition Nos 106 and 160 (consolidated) of 2021
  • Equity Bank Limited v Gerald Wang'ombe Thuni
    (2015) eKLR
  • Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others
    [2020] eKLR
  • Raila Odinga & Others v Independent Electoral & Boundaries Commission & Others
    Petition No. 5 of 2013
  • Kenya Medical Research Institute v Samson Gwer & 8 others
    [2019] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Minister of Home Affairs vs Bickle & Others
    (1985) L.R.C. Const. 755
  • Uhuru Muigai Kenyatta v Nairobi Star Publications Limited
    [2013] eKLR
  • Wahid Munwar Khan vs The State
    AIR (1956) Hyd. 22
  • S v. Mhlungu
    1995 (3) SA 867 (CC)
  • Ashwander v. Tennessee Valley Authority
    297 U.S. 288, 347 (1936)
  • Kimani Waweru & 4 Others vs Central Bank of Kenya & 7 Others
    [2018] eKLR
  • Karuri & Others vs Dawa Pharmaceuticals Company Limited and Others
    [2007] 2 EA 235
Jurisdiction invoked
Article 22 and 23 of the Constitution (petition for enforcement of Bill of Rights); Article 2(1) & (2), 27, 28, 30 and 48 invoked in the petition

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Osewe & another (Suing on their Own Behalf and on Behalf of 144 others) v County Government of Kisumu & another (Petition E041 of 2022) [2024] KEELRC 904 (KLR)", Case Analysis (2024). Petition dated 27th October 2022 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/904/eng@2024-04-25

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