Mutuku & 2 others v Registrar of Trade Union & 2 others (Petition E018 of 2024) [2025] KEELRC 278 (KLR)
The bottom line
#Kenya's Employment Court struck out a constitutional petition because the dispute should have been filed as an ordinary suit under the Labour Relations Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is barred by the doctrine of constitutional avoidance
Yes. The core grievance concerned the union's constitution and section 35 of the Labour Relations Act, and the reliefs sought did not include a declaration of constitutional violation, so the petition should have been an ordinary statutory suit.
The court reviewed authorities on constitutional avoidance from Zimbabwe, the Supreme Court of Kenya and its own prior decision in Kitiku. It found the petitioners' grievance was the alleged violation of the union's constitution and section 35 of the Labour Relations Act. Notably, the reliefs section of the petition did not seek a declaration that any cited constitutional right was violated. The court therefore concluded the petition was improperly presented as constitutional litigation.
Whether the sub judice objection could be determined as a preliminary objection
No. Sub judice cannot be successfully raised without the court considering facts, so it is not a pure point of law.
The court noted that section 6 of the Civil Procedure Act prohibits trial of a suit where matters in issue are directly and substantially in issue in a previously instituted suit. However, determining whether those conditions exist requires interrogating factual matters, including the pleadings in the other suits. The court held the doctrine therefore cannot properly be raised as a preliminary objection.
Whether the petitioners' replying affidavit in response to the preliminary objection was proper
No. The affidavit was misplaced, as preliminary objections must be pure points of law determined without evidence.
The court criticised the filing of an affidavit in reply to a preliminary objection, holding that preliminary objections are meant to be on pure points of law and should be determined as such. Inviting the court to consider an affidavit, and therefore evidence, makes nonsense of that requirement. The court addressed this before considering the specific grounds of objection.
Legal principles established
#- A mere allegation that a constitutional right has been violated is not sufficient to attract the court's constitutional jurisdiction where statutory remedies exist
- The doctrine of sub judice cannot properly be raised as a preliminary objection because it requires interrogation of facts
- Where the constitutional litigation path is unnecessary because remedies lie under statute, the petition should be pursued as an ordinary suit
Court orders
#- 1.The Petitioners' petition is struck out
- 2.Each party is to bear its own costs
- Jurisdiction invoked
- Original constitutional petition jurisdiction of the Employment and Labour Relations Court (jurisdiction contested by the 2nd and 3rd Respondents' preliminary objection)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutuku & 2 others v Registrar of Trade Union & 2 others (Petition E018 of 2024) [2025] KEELRC 278 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/278/eng@2025-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.