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ELRCDismissedPetition E012 of 2024

Kennedy v International Rescue Committee Kenya; Kenya Medical Practitioners and Dentist Board (Interested Party) (Employment and Labour Relations Petition E012 of 2024) [2024] KEELRC 1963 (KLR)

Employment and Labour Relations Court
26 July 2024
AMANNA NGIBUINI MWAURE
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that constitutional claims tied to unfair dismissal deserve a full hearing and cannot be struck out early.

What this practically means

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Executive summary

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The Respondent, who had employed the Petitioner as a medical officer from 1st January 2023 and terminated her contract for gross misconduct on 20th September 2023, filed a Notice of Motion dated 21st February 2024 seeking to strike out the Petition dated 19th January 2024. The Respondent argued that the petition did not meet the threshold of a constitutional petition because the alleged violations did not amount to infringement of rights under the Bill of Rights; that the dispute was essentially an employment matter to be brought by a Statement of Claim under the Employment Act; and that the petition was misconceived, incompetent and an abuse of process. The Respondent relied on David Mathu Kimingi v SMEC International and Sumayya Athmani Hassan for the proposition that allegations of unfair termination do not amount to constitutional violations. The Petitioner opposed, contending that the Mutunga Rules do not provide for striking out petitions at the interlocutory stage, that the petition cites Articles of the Constitution and multiple statutes, and that the court is clothed with jurisdiction to determine constitutional issues arising from employment contracts, relying on the Supreme Court decisions in Kenya Tea Growers Association and Nicholus. The court framed the single issue as whether the petition should be struck out. Finding that the petition on its face alludes to constitutional violations, and applying the Supreme Court's holding in Kenya Tea Growers Association that the ELRC is not precluded from determining constitutional questions within its jurisdiction, the court held it premature to strike out the petition without a full hearing. The application was dismissed, the petition to proceed to full hearing, with costs in the cause.

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 should be struck out at the interlocutory stage
  2. 2.Whether the Petitioner raised constitutional issues/violations justifying the filing of a petition, or whether the dispute should have been brought as an ordinary employment claim by a Statement of Claim

Key legal issues

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01

Whether the petition should be struck out as not meeting the threshold of a constitutional petition

Holding

The application to strike out was dismissed; the petition raises constitutional violations on its face and must proceed to full hearing

Reasoning

The court perused the petition and found that on its face it alludes to constitutional violations. The court's mandate is to give audience to all parties to decipher the suit in its entirety, and determining entitlement to findings of constitutional violation requires a full hearing. Relying on the Supreme Court's decision in Kenya Tea Growers Association, the ELRC is clothed with jurisdiction to determine constitutional issues arising from employment disputes. Striking out at this stage was held premature.

p. 3

Legal principles established

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  • The ELRC is not precluded from determining constitutional issues arising from employment and labour relations disputes within its jurisdiction
  • A petition alleging constitutional violations arising from an employment relationship should not be struck out at the interlocutory stage but should proceed to full hearing

Court orders

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  1. 1.The Notice of Motion dated 21st February 2024 seeking to strike out the Petition dated 19th January 2024 is dismissed
  2. 2.The Petition dated 19th January 2024 shall proceed to full hearing and be determined in its entirety
  3. 3.Costs will be in the cause

The bench

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

AM
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) of the Constitution (ELRC jurisdiction over employment and labour relations disputes, including constitutional issues arising therein)

Relief refused

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Costs of the application to be borne by the Petitioner

The application was dismissed with costs in the cause

p. 4

Costs

Costs will be in the cause

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.

Thus the court finds the application vide notice of motion dated 21st February 2024 is not merited and the petition dated 19th January 2024 should be heard and determined in full.
p. 4Outcome - application to strike out dismissed
The application by the respondent is dismissed and costs will be in the cause.
p. 4Final orders - dismissal and costs
The court finds this is a premature stage to struck out this petition and is only just to proceed to full hearing and determine the petition in its entirety.
p. 4Prematurity of striking out constitutional petitions

Issues in the judgment

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minor

Inconsistent designation of the Petitioner's role within the same ruling - the judgment refers to 'Petitioner/Respondent' and 'Claimant/Respondent'

minor

The closing 'ORDER' block is a standard COVID-19 template referring to directions of 2020 in a judgment delivered in July 2024

minor

The court quotes the Supreme Court in Kenya Tea Growers Association with a citation (Petition No 004 of 2023, unreported) that differs from the citation given in submissions ([2023] KESC 63 (KLR))

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, "Kennedy v International Rescue Committee Kenya; Kenya Medical Practitioners and Dentist Board (Interested Party) (Employment and Labour Relations Petition E012 of 2024) [2024] KEELRC 1963 (KLR)", Case Analysis (2024). Petition E012 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1963/eng@2024-07-26

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