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ELRCStruck OutPetition dated 11th September, 2023

Ombati v Governor, Nyamira County & another (Petition E024 of 2023) [2024] KEELRC 1878 (KLR)

Employment and Labour Relations Court
18 July 2024
CBChristine N. Baari
3,070 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court struck out a sacked county official's constitutional petition, holding that unfair dismissal claims must first go through the Employment Act's remedies.

What this practically means

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Executive summary

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The Petitioner, formerly the County Executive Committee Member for Health in Nyamira County, petitioned the Employment and Labour Relations Court seeking declarations that his dismissal violated Articles 28, 41, 47 and 50 of the Constitution, judicial review orders of certiorari and mandamus to quash the termination and compel reinstatement, general and aggravated damages of Kshs 2,000,000 with interest, and costs. He contended that his dismissal followed a delayed flag-off of a Kshs 22 million drugs consignment attributable to the supplier, MEDS, and that the dismissal lacked substantive justification and procedural fairness, with no hearing or appeal mechanisms afforded. The Respondents maintained that the Petitioner misrepresented that the full consignment had been received and distributed, that an audit revealed anomalies and malpractices, and that the Governor's power to dismiss a CEC member at pleasure under Section 31 of the County Government Act was reasonably exercised. Framing two issues, the court considered the doctrine of constitutional avoidance and held that the employer-employee relationship arose from a contract of employment and that the claimed rights were already protected under the Employment Act, 2007 and the Fair Administrative Actions Act. Relying on the Court of Appeal's guidance in Sumayya Athmani Hassan and Gabriel Mutava, it held that where legislation gives effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution. The court did not reach the merits of the termination or the claimed violations and struck out the petition with costs to the Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition as drawn violates the doctrine of Constitutional avoidance.
  2. 2.Whether the Petitioner is entitled to the reliefs sought.

Key legal issues

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01

Whether the petition offended the doctrine of constitutional avoidance

Holding

Yes. The employer-employee dispute arising from a contract of employment had adequate remedies under the Employment Act, 2007 and the Fair Administrative Actions Act, so the petition could not rest directly on the Constitution.

Reasoning

The court found the relationship was contractual employer-employee. The rights claimed (Articles 28, 41, 47, 50) are protected under the Employment Act, 2007 and the Fair Administrative Actions Act. Following Sumayya Athmani Hassan, Gabriel Mutava, Bahadur and SA Naptosa, the court held the Constitution should not be a general substitute for ordinary statutory remedies, and the petition was struck out without addressing the merits.

p. 6
02

Whether the Petitioner is entitled to the reliefs sought

Holding

The court did not determine the question on the merits, as the petition was struck out for offending the doctrine of avoidance.

Reasoning

Having found the petition incompetent for bypassing statutory remedies, the judge declined to proceed to the substantive reliefs of declaration, certiorari, mandamus, reinstatement, damages and interest, and struck the petition out with costs to the Respondents.

p. 7

Legal principles established

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  • Where legislation has been enacted to give effect to a constitutional right, a litigant may not base a cause of action directly on the Constitution without challenging that legislation or showing its remedies are inadequate.

Court orders

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  1. 1.The petition is struck out.
  2. 2.Costs of the petition awarded to the Respondents.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CB
majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23(3), 28, 41, 47 and 50 of the Constitution of Kenya (petition for enforcement of constitutional rights)

Relief refused

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Declaration of violation of Articles 28, 41, 47 and 50

Court could not reach the substantive issues because the petition offended the doctrine of constitutional avoidance

p. 7

Certiorari to quash the termination letter dated 6th September, 2023

Petition struck out on constitutional avoidance before merits considered

p. 7

Mandamus to reinstate the Petitioner with back dues

Petition struck out; remedy lies under the Employment Act

p. 6

General and aggravated damages of Kshs 2,000,000 and interest

Not considered; petition struck out at the threshold

p. 7

Costs

Costs of the petition awarded to the Respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is trite law that where legislation has been enacted to give efiect to a constitutional right, it is not permissible to base a cause of action directly on the Constitution.
p. 6doctrine of constitutional avoidance
For the foregoing reasons, I find the petition wanting, and I am therefore unable to proceed with the determination of the substantive issues raised by the Petitioner, with the result that I proceed to strike out the petition.
p. 7striking out the petition
The petition is hereby struck out with costs to the Respondents.
p. 7final orders

Issues in the judgment

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minor

Supporting affidavit date precedes the petition date it supports in the text

minor

Relief (ii) refers to the Petitioner as the Applicant

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ombati v Governor, Nyamira County & another (Petition E024 of 2023) [2024] KEELRC 1878 (KLR)", Case Analysis (2024). Petition dated 11th September, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1878/eng@2024-07-18

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