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ELRCStruck OutNot stated in the judgment· [2025] KEELRC 2052 (KLR)

Orioki v Del Monte Kenya Limited (Petition E021 of 2025) [2025] KEELRC 2052 (KLR)

Employment and Labour Relations Court
10 July 2025
BOByram Ongaya
3,296 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 struck out a unfair-termination petition, ruling that ordinary employment disputes belong in a statement of claim, not a constitutional petition.

What this practically means

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Executive summary

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The petitioner, engaged as a Human Rights Manager by the respondent under an employment agreement dated 30.05.2024 effective 15.07.2024, was terminated by letter dated 08.01.2025 on grounds that his overall performance had not met expectations. He filed a constitutional petition seeking declarations that the respondent violated his rights under Articles 10, 24, 25, 27, 41, 47 and 50 of the Constitution and sections 41, 43 and 45 of the Employment Act, 2007, together with compensation for unfair termination, damages for psychological anguish, exemplary damages and costs. He alleged lack of performance evaluation, an inadequate show cause process, a disciplinary hearing unrelated to the termination grounds, and breach of the respondent's Disciplinary Procedure Manual. The respondent, through the replying affidavit of Gedion Kimutai, urged that the petition was trapped by the doctrine of constitutional avoidance since the dispute was essentially an unfair termination claim amenable to an ordinary action, that the petitioner was insubordinate, and that his probation was simply not confirmed with terminal dues of Kshs. 350,650.05 paid. The Court, per Byram Ongaya, Principal Judge, framed the issue as whether the petition was trapped by constitutional avoidance. It found the primary dispute was unfair termination under sections 41, 43 and 45 of the Employment Act with remedies under section 49, involving heavily contested factual issues best traversed by pleadings and testimony in an ordinary action. Relying on rule 9(3) of the ELRC (Procedure) Rules, the Court held that secondary constitutional claims should be urged in a statement of claim. The petition was struck out with no orders on costs, with liberty implied to institute a proper claim by statement of claim.

Key legal issues

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01

Doctrine of constitutional avoidance

Holding

The petition was struck out because the primary dispute was unfair termination under sections 41, 43 and 45 of the Employment Act with remedies under section 49, which should be litigated by ordinary action; constitutional claims could be raised within that suit under rule 9(3)

Reasoning

The Court examined the pleadings and found the grievance centred on contested factual issues (diligence, performance reviews, fairness of the disciplinary process) arising from the employment contract. Such facts are best traversed through pleadings and testimony in an ordinary action rather than affidavit-based petition proceedings. Rule 9(3) permits constitutional claims in a statement of claim, so the petitioner suffers no loss of remedy.

p. 7

Legal principles established

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  • Where the primary claims are statutory and amenable to an ordinary statement of claim, secondary constitutional claims should be urged in the statement of claim rather than a constitutional petition
  • A petition based solely on affidavit evidence is unsuited to disputes turning on heavily contested facts best resolved in a full hearing in an ordinary action

Court orders

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  1. 1.The petition is struck out
  2. 2.No orders on costs
Jurisdiction invoked
Articles 10, 19(2), 20, 21(1), 23(3), 41, 47, 50(1), 258(1) and 259(1) of the Constitution; Employment and Labour Relations Court (Procedure) Rules, rule 9(3)

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, "Orioki v Del Monte Kenya Limited (Petition E021 of 2025) [2025] KEELRC 2052 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2052/eng@2025-07-10

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