Mwangi & 62 others v Steel Makers Limited (Petition E003 of 2024) [2024] KEELRC 1070 (KLR)
The bottom line
#The Mombasa Employment Court struck out 63 hotel workers' wage petition, ruling they must use their trade union or ordinary employment claim routes instead of the Constitution.
What this practically means
#Executive summary
#Key legal issues
#Whether the matter is properly a constitutional petition
No - constitutional avoidance applies; the dispute concerns employment and CBA rights with adequate remedies under the Employment Act, Labour Relations Act and the ELRC Procedure Rules
The court applied the doctrine of constitutional avoidance per the Supreme Court in Communication Commission of Kenya v Royal Media Services and the Court of Appeal in Sumayya Athmani Hassan, holding that Article 41 rights are enacted in the Employment Act and Labour Relations Act which provide adequate remedies, and issues could have been raised under Rule 7(3) of the ELRC Procedure Rules without invoking the constitutional route.
Proper forum and parties for a CBA-related wage claim
The trade union is the proper entity to pursue CBA disputes under the LRA; employees earning below Ksh.80,000 acting alone should file a Memorandum of Claim in the magistrate's court
A Recognition Agreement and CBA are regulated under the Labour Relations Act and exist between a trade union and an employer. The union must address grievances under Section 62, with a report to the Minister unless Section 74 applies. Individual employees earning under Ksh.80,000 should file claims before the magistrate's court nearest to them.
Precision in pleading constitutional violations
It is insufficient to cite constitutional provisions to convert an employment claim into a petition; pleadings must define the dispute with precision
Applying Anarita Karimi Njeru and Mumo Matemo, the court held that citing various constitutional provisions does not suffice to couch an employment dispute as a petition; pleadings must give fair notice of the issues, and petitions require compliance with Articles 22 or 258.
Authority of John Mwangi to act for 62 petitioners
A question of fact requiring evidence at a full hearing, particularly given the 19th petitioner's disavowal and absence of an Article 22 or 258 basis
The respondent challenged John Mwangi's authority and noted Mohamed Hamisi disowned the petition. The court held these are factual questions that cannot be resolved on affidavits and require a call of evidence, querying the basis for Mwangi's representation of the other petitioners.
Legal principles established
#- Where the law gives a legal right and a mechanism for redress, the doctrine of constitutional avoidance applies.
- Employment disputes where the employee earns less than Ksh.80,000 should be heard in the magistrate's court under Legal Notice No. 6024 of 10 June 2018.
- Employees seeking to assert rights under a CBA must channel the dispute through their trade union under Section 62 of the Labour Relations Act, with a report to the Minister before moving to court unless Section 74 protection applies.
Court orders
#- 1.The respondent's Notice of Preliminary Objections dated 24 April 2024 is allowed
- 2.The petition is struck out
- 3.The application dated 8 April 2024 is dismissed
- 4.Costs to the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Constitution and the Employment and Labour Relations Court (Procedure) Rules, 2016; petition premised on Articles 19, 21, 22, 23, 258, 27, 28, 40, 41 and 43 of the Constitution (as invoked by the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangi & 62 others v Steel Makers Limited (Petition E003 of 2024) [2024] KEELRC 1070 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1070/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.