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ELRCStruck OutPetition (Employment and Labour Relations Court, Nakuru)· [2025] KEELRC 601 (KLR)

PN v Intercity Secure Homes Limited & another (Petition E011 of 2024) [2025] KEELRC 601 (KLR)

Employment and Labour Relations Court
28 February 2025
1,149 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 in Nakuru struck out a worker's constitutional petition over job disputes, ruling she must use the Employment Act process in a Magistrate's Court instead.

What this practically means

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Executive summary

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The Respondents filed an application dated 23rd September 2024 seeking to strike out the Petitioner's Petition. The Petitioner, a former Sales Representative of the 1st Respondent employed on a gross monthly salary of Kshs. 45,000 between November 2018 and 18th September 2023, alleged unfair termination and violations of her constitutional rights to non-discrimination, dignity and fair labour practices, and sought general damages for discrimination and sexual harassment, holiday pay, underpayment, house allowance arrears, notice pay and 12 months' salary as compensation. The Respondents argued the Petition was a disguised contract claim offending constitutional avoidance, that it duplicated E&LRC Cause No. E018 of 2024 which had been declined for failure to exhaust alternative dispute resolution, and that the dispute fell within the Chief Magistrate's Court's jurisdiction given her salary. The Court found the Petitioner had sought identical remedies, including damages for sexual harassment, in the prior failed Cause, invoking the same constitutional provisions, and that her proper recourse was an appeal. It held sexual harassment and discrimination are statutorily regulated under Sections 5 and 6 of the Employment Act, and fair labour practices under Sections 41, 43, 45 and 49, all enforceable before designated Magistrates under Gazette Notice No. 6024 of 2018. The doctrine of constitutional avoidance was correctly invoked. The Court struck out the Petition, awarded costs to the Respondents, and granted the Petitioner leave to file a fresh claim at the Chief Magistrate's Court.

Key legal issues

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01

Res judicata / abuse of process arising from prior Cause E018 of 2024

Holding

The Petition raises the same issues and remedies as the prior failed Cause between the same parties; the proper course was an appeal, not a fresh Petition.

Reasoning

The Petitioner did not deny filing E&LRC Cause No. E018 of 2024 against the same Respondents on the same issues, seeking the same remedies including damages for sexual harassment and invoking the same constitutional provisions. That Claim was rejected for failure to exhaust alternative dispute resolution mechanisms. Filing a Petition instead of appealing was the wrong choice.

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02

Jurisdiction of the Chief Magistrate's Court over the dispute

Holding

The dispute, involving an employee earning Kshs. 45,000 monthly, falls within the jurisdiction of designated Magistrates under Gazette Notice No. 6024 of 2018, who can hear sexual harassment, discrimination and fair-labour-practices claims under the Employment Act.

Reasoning

Sexual harassment and workplace discrimination have statutory underpinning in Sections 5 and 6 of the Employment Act, and Article 41 rights find expression in Sections 41, 43, 45 and 49 of that Act. Nothing bars the Chief Magistrate's Court from hearing such claims and granting general damages; it is inconceivable that only 20 E&LRC Judges can hear all such claims countrywide.

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Doctrine of constitutional avoidance

Holding

The doctrine applies; there is a clear legislative pathway under the Employment Act, so the Petitioner should not invoke constitutional jurisdiction.

Reasoning

Violation of rights with statutory expression (fair labour practices, non-discrimination, sexual harassment) can be remedied through a Statement of Claim at the Chief Magistrate's Court. Rule 10 of the E&LRC (Procedure) Rules, 2024 allows constitutional enforcement within a Statement of Claim, which the Petitioner had already attempted and failed; the constitutional jurisdiction is therefore unnecessary.

p. 3

Legal principles established

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  • Sexual harassment and workplace discrimination are statutorily regulated under the Employment Act and need not be redressed through a constitutional petition at the E&LRC.
  • Designated Magistrates under Gazette Notice No. 6024 of 2018 have jurisdiction over employment disputes of employees earning below Kshs. 80,000 monthly, including sexual harassment and discrimination claims.
  • The doctrine of constitutional avoidance requires resort to the clear statutory pathway before invoking constitutional jurisdiction.
  • Rule 10 of the E&LRC (Procedure) Rules, 2024 permits enforcement of constitutional rights within a Statement of Claim, and a party who chose that route and failed should appeal rather than file a fresh Petition.

Court orders

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  1. 1.The Petition is hereby struck out
  2. 2.Costs of the Petition to the Respondents
  3. 3.The Petitioner is at liberty to file a fresh Claim at the Chief Magistrate's Court
Jurisdiction invoked
Article 165(3) of the Constitution; the application before the Court was brought under the E&LRC (Procedure) Rules, 2024 seeking striking out of the Petition

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, "PN v Intercity Secure Homes Limited & another (Petition E011 of 2024) [2025] KEELRC 601 (KLR)", Case Analysis (2025). Petition (Employment and Labour Relations Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/601/eng@2025-02-28

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