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ELRCOtherNot stated in excerpt (petition dated 20th June 2024)· [2025] KEELRC 518 (KLR)

Gachuhi v Eagle 1 Concrete & Machineries Limited; Directorate of Occupational Safety and Health Services (Interested Party) (Petition E010 of 2024) [2025] KEELRC 518 (KLR)

Employment and Labour Relations Court
13 February 2025
OMOnesmus N Makau
1,202 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it can hear constitutional petitions against employers who refuse to follow the work injury compensation law.

What this practically means

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Executive summary

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This is a first-instance ruling of the Employment and Labour Relations Court at Nyeri (Makau J) delivered on 13 February 2025 on a Notice of Preliminary Objection dated 8 July 2024 by the respondent, seeking striking out of the petitioner's petition dated 20 June 2024. The respondent argued that the petition was a mere employer-employee contractual claim clothed in Bill of Rights language, offending the doctrine of constitutional avoidance because the grievances were fully addressed by the Employment Act and the Work Injury Benefits Act, and that the court lacked jurisdiction under Gazette Notice No. 6024 given the petitioner's gross monthly salary of Kshs 45,000. The petitioner relied on Articles 27, 28, 41 and 47 of the Constitution, citing Boniface Orubia Wasika v Cadell Construction Co (De)LLC and Wycliffe Amukowa v Machakos University. The court framed the sole issue as whether the petition violated the doctrine of constitutional avoidance. Following Ongaya J's decision in Wasika, which was on facts 'on all fours', the court held that the petition was not a claim for compensation for a work-related injury but a challenge to the employer's conduct in refusing to comply with the statutory WIBA process, raising serious allegations of rights violations warranting determination by the ELRC. The preliminary objection was dismissed with costs. The ruling was delivered virtually via Teams with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether the petition violated the doctrine of constitutional avoidance

Holding

No - the petition is not a mere contractual claim clothed in Bill of Rights language; it seeks enforcement of rights under Articles 27, 28, 41 and 47 arising from the employer's refusal to comply with WIBA

Reasoning

The court followed Boniface Orubia Wasika v Cadell Construction Co (De)LLC, where Ongaya J held on materially similar facts that a petition to compel an employer's voluntary submission to WIBA processes is not a compensation claim but one to enforce the Act and secure fundamental freedoms. The respondent did not demonstrate any reason to depart from that decision.

p. 3

Legal principles established

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  • A petition seeking to compel an employer to comply with statutory obligations under WIBA and to enforce Bill of Rights freedoms is not barred by the doctrine of constitutional avoidance and is properly before the ELRC

Court orders

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  1. 1.Preliminary objection dated 8th July 2024 dismissed with costs
Jurisdiction invoked
Article 41 and 47 of the Constitution (enforcement of Bill of Rights in employment dispute); Gazette Notice No. 6024 jurisdictional threshold raised by respondent

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, "Gachuhi v Eagle 1 Concrete & Machineries Limited; Directorate of Occupational Safety and Health Services (Interested Party) (Petition E010 of 2024) [2025] KEELRC 518 (KLR)", Case Analysis (2025). Not stated in excerpt (petition dated 20th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/518/eng@2025-02-13

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