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ELRCDismissedPetition (ELRC, Nairobi) - number not stated in judgment· [2025] KEELRC 2061 (KLR)

Gachoki v Church World Service, RSC Africa (Employment and Labour Relations Petition E111 of 2024) [2025] KEELRC 2061 (KLR)

Employment and Labour Relations Court
10 July 2025
1,987 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 dismissed a redundancy challenge filed as a constitutional petition, confirming such disputes must be brought as ordinary Employment Act claims.

What this practically means

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Executive summary

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The Petitioner, employed by the Respondent from 2018 and promoted to Senior Case Worker in 2021 on an indefinite-term contract, filed a constitutional petition in mid-2024 challenging the Respondent's ongoing rightsizing process, alleging that her position was at risk of compulsory redundancy in violation of sections 40, 45 and 46 of the Employment Act, the Fair Administrative Action Act, and Articles 27, 41, 43 and 47 of the Constitution. She sought declarations, orders to retain her position, injunctions, a conservatory order, general damages and compensation. The Respondent, in a replying affidavit, showed that a notice of intended redundancy dated 31/7/2024 was issued to the labour office after consultations, the Petitioner declined to apply for retained positions, and terminal dues including severance at 15 days per year were paid against a signed discharge voucher. The court framed three issues: constitutional avoidance, cause of action, and entitlement to reliefs. It held the petition inappropriately invoked the constitutional jurisdiction over matters governed by the Employment Act, was prematurely filed to pre-empt a lawful process, and became moot because the redundancy was completed during the suit, terminal benefits were received, and the petition was never amended. The court also found no proof of violation of Articles 41 and 47. The petition was dismissed with no order as to costs, the court noting the Petitioner lost her job through no fault of her own.

Key legal issues

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01

Constitutional avoidance

Holding

Redundancy disputes under sections 40, 45 and 46 of the Employment Act should be litigated in a normal claim, not a constitutional petition

Reasoning

The court held that the grievances about notice, selection criteria and terminal dues are matters ordinarily dealt with under the Employment Act, the ELRC Act and the ELRC Procedure Rules. Invoking the constitutional jurisdiction for such disputes violates the principle of constitutional avoidance, which the court framed as an issue for determination.

p. 5
02

Cause of action and prematurity

Holding

At filing, the petition disclosed no cause of action because the redundancy process was still underway and compliance could not yet be assessed

Reasoning

The court found that when the petition was filed the redundancy process had only commenced and it was too early to determine whether the Respondent complied with section 40 on notice, selection and terminal benefits. The process concluded during the suit, the Petitioner's employment was terminated and terminal benefits were paid and received, yet the petition was never amended.

p. 4
03

Mootness

Holding

The petition became moot upon completion of the redundancy and receipt of terminal benefits, rendering the remedies sought ineffective

Reasoning

The court noted the redundancy process concluded during the tenancy of the case, the Petitioner was terminated on grounds of redundancy and received terminal benefits including a discharge voucher. The injunctions and conservatory orders sought could no longer serve any purpose, and the petition should have been amended to capture the new reality.

p. 4
04

Violation of Articles 41 and 47

Holding

Not proved on a balance of probability that the redundancy violated constitutional rights

Reasoning

The Petitioner alleged unfair labour practice and inadequate notice under section 40(1)(a) and (b) and ILO Convention No. 158, but the court found the Petitioner neither disclosed nor proved that the redundancy exercise as commenced and finalized violated Articles 41 and 47. The petition's prematurity also made such a conclusion unavailable to any reasonable court.

p. 5

Legal principles established

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  • A constitutional petition is an inappropriate vehicle for disputes governed by the Employment Act regarding redundancy and termination for operational reasons; such matters belong in a normal memorandum of claim (constitutional avoidance).
  • A petition filed prematurely to pre-empt a lawful ongoing redundancy process, and not amended to capture the eventual termination, discloses no cause of action and is moot.

Court orders

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  1. 1.The petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsections 40, 45, 46; section 40(1)(a), (b), (c); section 2
  • Constitution of Kenya, 2010Articles 27, 41, 43, 47
  • Fair Administrative Action Actsection 4
  • Employment and Labour Relations Court Actnot specified
  • Employment and Labour Relations (Procedure) Rules2016 (now 2024)
  • ILO Convention No. 158 on Termination of Employment, 1980not specified

Cases cited (2)

  • Kenya Union of Commercial Food and Allied Workers v Nepriy Pharma Ltd
    ELRC Cause No. Ef32 of 2021
  • Jane I Khalechi v Oxford University Press E.A. Ltd
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act

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, "Gachoki v Church World Service, RSC Africa (Employment and Labour Relations Petition E111 of 2024) [2025] KEELRC 2061 (KLR)", Case Analysis (2025). Petition (ELRC, Nairobi) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2061/eng@2025-07-10

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