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ELRCDismissedPetition No E007 of 2024· [2025] KEELRC 594 (KLR)

Mkaya v County Government of Taita Taveta & another (Petition E007 of 2024) [2025] KEELRC 594 (KLR)

Employment and Labour Relations Court of Kenya
16 January 2025
2,949 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 dismissed the County Government's attempt to strike out a health official's constitutional petition, letting his case against disciplinary proceedings proceed.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Mombasa (Ocharo Kebira, J) dated 16th January 2025, on a Notice of Preliminary Objection filed by the County Government of Taita Taveta and another Respondent against a petition and conservatory-order application by the Petitioner, the County Executive Committee Member for Health, who sought to bar the Respondents from commencing, continuing or concluding disciplinary proceedings against him or adversely interfering with his employment. The Respondents objected on grounds including want of jurisdiction, misjoinder of contractual disputes with the Constitution, the doctrine of constitutional avoidance, and lack of particularity. The court distilled three issues: whether the preliminary objection was properly taken; whether the petition was properly presented; and whether constitutional avoidance militated against the petition. Applying Mukisa Biscuits and Omondi v National Bank of Kenya, the court held that most grounds were not pure points of law and the objection was largely improperly taken. Applying Anarita Karimi Njeru as reinforced by Mumo Matemu, it held the petition met the reasonable-precision threshold, noting that reasonable precision does not equate to mathematical precision. On constitutional avoidance, relying on the Supreme Court's decision in Communications Commission of Kenya v Royal Media Services, the court found the petition was not an employment claim disguised as a constitutional dispute; the alleged violations fell outside the Employment Act, and the Respondents had not demonstrated a specific alternative grievance-resolution mechanism in the contract or Human Resource Manual. The preliminary objection was dismissed with costs. The substantive conservatory orders remain for determination in the pending application and petition.

Key legal issues

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01

Whether the preliminary objection was properly taken as a pure point of law

Holding

Most of the grounds in the preliminary objection were not pure points of law; the objection was largely improperly taken.

Reasoning

Relying on Mukisa Biscuits and Omondi v National Bank of Kenya, the court held that a preliminary objection must rest on pure law without contested facts. Most grounds required factual investigation; only the questions of proper presentation and constitutional avoidance were pure points of law suitable for determination.

p. 5
02

Whether the petition was properly presented with the required precision

Holding

The petition met the Anarita Karimi Njeru threshold of reasonable precision.

Reasoning

The court applied Anarita Karimi Njeru as reinforced by Mumo Matemu, noting that precision is not exactitude and that the doctrine defines the issues for the court and informs the opposing party of the case to be met. The petition identified the constitutional provisions said to be infringed and the manner of infringement.

p. 5
03

Whether the doctrine of constitutional avoidance barred the petition

Holding

The doctrine did not apply because the petition was not an employment claim disguised as a constitutional dispute and no alternative mechanism was demonstrated.

Reasoning

Applying Communications Commission of Kenya v Royal Media Services, the court examined the facts, alleged violations and reliefs and concluded the petition was not a disguised employment claim. The respondents made only a bold but general assertion that contractual and Human Resource Manual mechanisms existed, without specifics, so the grievances did not fall within the Employment Act's ambit.

p. 6

Legal principles established

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  • A preliminary objection must be on a pure point of law, free from contested facts requiring evidence.
  • The Anarita Karimi Njeru precision threshold applies to petitions, but reasonable precision does not equate to mathematical precision.
  • The doctrine of constitutional avoidance does not defeat a petition where no alternative adequate statutory or contractual mechanism for redress has been demonstrated.

Court orders

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  1. 1.The Respondents' Notice of Preliminary Objection is dismissed with costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41 (fair labour practices); Article 22 (enforcement of Bill of Rights); Article 159(2)(d); Article 48
  • Employment ActSection 10
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (11)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 698
  • Speaker for the National Assembly v Karume
    [2008] KLR
  • Communication Commission of Kenya & Others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Sumnayya Athmani Hassan v Masinde Simidi & another
    [2019] eKLR
  • Omondi v National Bank of Kenya Ltd & Others
    [2001] KLR 579; [2001] 1 EA 177
  • S v Mhlungu
    1995 [3] SA 867 [CC]
  • Mulwa Msanifu Kombo v Kenya Airways
    [2013] eKLR
  • Godfrey Paul Okutoyi & Others v Habil Olaka & Another
    [2018] eKLR
  • Hakiziman Abdulkarim v Arrow Motors E A Ltd & another
    [2017]
  • Anarita Karimi Njeru v the Republic
    [1976-1980] KLR 1272
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
Jurisdiction invoked
Articles 22, 41 and 162(2) of the Constitution of Kenya 2010 (employment and labour relations jurisdiction; enforcement of Bill of Rights)

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, "Mkaya v County Government of Taita Taveta & another (Petition E007 of 2024) [2025] KEELRC 594 (KLR)", Case Analysis (2025). Petition No E007 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/594/eng@2025-01-16

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