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ELRCOtherPetition dated 20/11/2024 (Notice of Preliminary Objection dated 8/1/2025)· [2025] KEELRC 1858 (KLR)

Naipanoi & 2 others v Kenya Wildlife Service & another (Employment and Labour Relations Petition E194 of 2024) [2025] KEELRC 1858 (KLR)

Employment and Labour Relations Court
26 June 2025
769 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 refused to throw out a workers' rights petition early, ruling that constitutional arguments need facts examined and will be decided in the full judgment.

What this practically means

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Executive summary

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The 1st and 2nd Respondents filed a notice of preliminary objection dated 8/1/2025 contending that the court lacked jurisdiction over the Petitioners' petition dated 20/11/2024 because it contravened the doctrine of constitutional avoidance. In submissions, the Respondents argued that the disputes were not constitutional in nature: the petition sought a declaration, injunction, setting aside of a letter of discontinuation dated 23/11/2024, and mandamus compelling payment of Kshs. 5 million compensation for breach of constitutional rights, matters they said were governed by the Employment Act and Labour Relations Act. They relied on the Court of Appeal decision in Sumayya Athmani Hassan and the Supreme Court's Communications Commission decision on the requirement to pursue statutory remedies. The Petitioners countered that the petition involved interpretation and enforcement of fundamental rights under Articles 22 and 23 and the Mutunga rules, and asked that the objection be dismissed. The court, having perused the unresponded petition, held that the matters required determination of mixed issues of law and fact, and that the objection therefore failed the tests in Mukisa Biscuits Manufacturing Ltd v West End Distributors Ltd and Oraro v Mbaja. The objection was found not ripe; it remains alive and will be considered in the judgment on the merits. It was not upheld, with costs in the petition. Judgment was delivered at Nairobi on 26 June 2025 by Mathews Nduma, Judge.

Key legal issues

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01

Whether the doctrine of constitutional avoidance defeats the petition's jurisdiction at a preliminary stage

Holding

The objection was not upheld at this stage because it raises mixed issues of law and fact; it remains alive for determination in the main judgment.

Reasoning

The Respondents argued, citing Sumayya Athmani Hassan and Communications Commission, that the petitioners should pursue statutory remedies under the Employment Act rather than found a cause of action directly on the Constitution. The Petitioners relied on Articles 22 and 23 and the Mutunga rules. The court, having perused the petition which was unresponded to, found the objection entailed factual determination and thus failed the Mukisa Biscuits and Oraro v Mbaja tests for a true preliminary objection.

p. 2
02

Definition of a valid preliminary objection

Holding

A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct.

Reasoning

The court adopted the classic formulations in Mukisa Biscuits and Oraro v Mbaja: an objection bearing factual aspects calling for proof, or requiring evidence for authentication, is not a true preliminary objection. Since the constitutional-avoidance objection would require ascertainment of facts about the petition's claims and remedies, it was premature and not ripe for determination.

p. 2

Legal principles established

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  • A preliminary objection raising a doctrine requiring factual inquiry is not a pure point of law and cannot be upheld at the threshold

Court orders

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  1. 1.The preliminary objection is not upheld
  2. 2.The objection is not ripe and remains alive; it shall be considered and determined in the judgment of the petition on the merits
  3. 3.Costs in the petition
Jurisdiction invoked
Articles 22 and 23 of the Constitution (enforcement of fundamental rights and freedoms; Mutunga rules invoked)

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, "Naipanoi & 2 others v Kenya Wildlife Service & another (Employment and Labour Relations Petition E194 of 2024) [2025] KEELRC 1858 (KLR)", Case Analysis (2025). Petition dated 20/11/2024 (Notice of Preliminary Objection dated 8/1/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1858/eng@2025-06-26

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