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ELRCDismissedNot stated in judgment (Employment and Labour Relations Court Petition)· [2025] KEELRC 2668 (KLR)

Chege v Kenya Railways Corporation (Employment and Labour Relations Petition E071 of 2025) [2025] KEELRC 2668 (KLR)

Employment and Labour Relations Court
2 October 2025
HWHELLEN WASILWA
1,783 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to strike out an employee's constitutional petition, ruling that disputes needing factual investigation must go to a full hearing.

What this practically means

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Executive summary

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The Respondent/Applicant filed a Notice of Motion dated 2nd May 2025 seeking the striking out and/or dismissal of a constitutional petition filed by its former Corporation Secretary and Head of Legal Department, who alleged violations of Articles 41, 47 and 50(1) of the Constitution arising from her employment. The Applicant argued that the petition was a disguised ordinary employment claim offending the doctrine of constitutional avoidance, that statutory remedies existed under the Employment Act (Sections 41, 43 and 49), that the petition failed the Anarita Karimi Njeru precision threshold, and that no exceptional circumstances justified direct constitutional invocation, relying on Communications Commission of Kenya v Royal Media Services and PN v Intercity Secure Homes. The Petitioner opposed, contending that Articles 41, 47 and 50(1) were pleaded with particulars, that striking out is a draconian remedy inappropriate where triable issues exist, that the deponent to the supporting affidavit lacked authority, and that a litigant may choose the constitutional vehicle, citing C N M v W M G and Fredericks v MEC for Education. Judge Hellen Wasilwa held that the alleged breach arose from a contract of employment and its determination would require the court to delve into factual issues, which is beyond the scope of a striking-out application as framed in the Mukisa Biscuit decision. The application was found unmerited and dismissed, with the parties directed to proceed with the main petition and costs reserved to the petition.

Key legal issues

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01

Whether a constitutional petition founded on an employment dispute can be struck out on the doctrine of constitutional avoidance

Holding

No - the application was dismissed because determination of the alleged breach requires resolution of factual issues beyond the scope of a striking-out application

Reasoning

The Applicant argued the petition was a disguised ordinary employment claim offending constitutional avoidance and failing the Anarita Karimi Njeru precision threshold. The Petitioner countered that Articles 41, 47 and 50(1) were cited with particulars, that striking out is draconian, and that a litigant may choose the constitutional vehicle. The court held the breach alleged arises from a contract of employment and would require factual enquiry, which a striking-out application cannot accommodate, and dismissed the motion.

p. 5

Legal principles established

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  • A striking-out application cannot be granted where its determination would require the court to delve into contested factual issues

Court orders

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  1. 1.The Notice of Motion dated 2nd May 2025 seeking striking out of the Petition is dismissed
  2. 2.Parties directed to proceed with the main petition
  3. 3.Costs in the petition
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over constitutional petitions concerning labour relations (Articles 41, 47 and 50 of the Constitution invoked by the Petitioner)

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, "Chege v Kenya Railways Corporation (Employment and Labour Relations Petition E071 of 2025) [2025] KEELRC 2668 (KLR)", Case Analysis (2025). Not stated in judgment (Employment and Labour Relations Court Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2668/eng@2025-10-02

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