Malome & 170 others v Associated Battery Manufacturers (EA) Ltd; Directorate of Occupational Safety and Health Services (Interested Party) (Employment and Labour Relations Petition E004 of 2025) [2025] KEELRC 3710 (KLR)

The court acknowledged that the core of the petition relates to workplace disease and accidents, a matter for DOSH under WIBA, but noted the petition also raises constitutional claims. Relying on Article 162(2)(a), the court held that the ELRC is seized of jurisdiction over constitutional claims of violation arising from employer-employee relationships, and that a constitutional issue is not defeated by the doctrine of exhaustion. Since one prayer alleges discriminatory failure to conduct medical examinations in violation of Article 27, an issue DOSH cannot handle, the court found jurisdiction and dismissed the striking-out application.

The respondent relied on Communications Commission of Kenya v Royal Media Services for the principle that a court will not determine a constitutional issue where a matter may properly be decided on another basis. The court accepted the doctrine as stated but found it inapplicable here because the petition included a discrimination claim under Article 27 which DOSH has no jurisdiction to handle; consequently the constitutional question could not be resolved elsewhere and the petition was properly before the ELRC.