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ELRCStruck OutELRC No. E015 of 2026· [2026] KEELRC 2429 (KLR)

Pirbhai v Diamond Trust Bank Kenya Limited (Petition E015 of 2026) [2026] KEELRC 2429 (KLR)

Employment and Labour Relations Court
20 August 2026
4,822 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioner, dismissed from employment on 13th October 2025, filed a constitutional petition seeking declarations of violations of Articles 28, 41 and 47, general and aggravated damages, twelve months' compensation under section 49(1)(c) of the Employment Act, Kshs. 193,218 allegedly deducted unlawfully, and unpaid leave. The respondent applied to strike out the petition, arguing it improperly constitutionalized an ordinary employment dispute, disclosed no independent constitutional controversy, and offended the doctrine of constitutional avoidance, since adequate remedies exist under sections 41, 43 and 45 of the Employment Act. The petitioner opposed, contending the petition pleaded a sustained course of intimidation, coercion, psychological harassment and intrusion into private and family life - including off-site meetings and summoning her brother - constituting independent violations of Articles 28, 31, 41 and 47 incapable of adequate vindication under the Employment Act. Jemmah Keli J applied D.T. Dobie on the sparing use of striking out, but held that the doctrine of constitutional avoidance, as articulated in S v Mhlungu and applied in Hassan v Simidi, Mutava v Kenya Ports Authority and Wajir Wasco, required the statutory route. All grievances were pleaded under Article 41, which is legislated under sections 41 and 45 of the Employment Act; the alleged privacy and family-life violations did not fall outside the statutory framework. The matter ought to have been filed as an ordinary claim, and the petitioner remained within the limitation period under section 89. The application was allowed, the petition struck off, and, the decision being on a procedural technicality, each party was ordered to bear their own costs.

Key legal issues

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01

Whether the petition constitutionalizes an ordinary employment dispute contrary to the doctrine of constitutional avoidance

Holding

Yes. All the pleaded violations fall within Article 41, which is legislated under sections 41 and 45 of the Employment Act, and the dispute ought to have been filed as an ordinary claim.

Reasoning

The court found that the petitioner's grievances - investigations, suspension, disciplinary process and termination - are comprehensively regulated by the Employment Act. The claims of harassment, intimidation and coercion were all pleaded under Article 41, and the dignity claim under Article 28 falls within the same pleaded violations. The statutory framework is capable of redressing the grievance, the dismissal was within the limitation period under section 89 of the Employment Act, and the court can award constitutional-level remedies within its statutory jurisdiction.

p. 21
02

Whether allegations of privacy and family intrusion (Article 31) raise a distinct constitutional controversy

Holding

No. The court found the alleged violations were not outside the procedural fairness framework of the Employment Act, and the remedy does not depend on determining a constitutional question.

Reasoning

Although the petitioner alleged coercive conduct extending beyond the workplace, including summoning her brother and intrusion into family life, the court held that these arose directly from and were inseparably connected to the employment relationship and internal disciplinary processes. Applying the Sagittarius Wrestling Club principle, courts decline to determine a constitutional breach where a remedy is available under other legislation.

p. 20

Legal principles established

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  • No suit should be summarily dismissed unless it is hopeless and plainly discloses no reasonable cause of action
  • Where a statute gives effect to a constitutional right and provides adequate remedies, a litigant may not found a cause of action directly on the Constitution without challenging the statute
  • The doctrine of constitutional avoidance requires that where a case can be decided without reaching a constitutional issue, that course should be followed

Court orders

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  1. 1.The application dated 5th March 2026 is allowed for offending the doctrine of constitutional avoidance
  2. 2.The petition is struck off
  3. 3.Each party to bear own costs
  4. 4.The file is marked as closed
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act; Constitution of Kenya Articles 28, 31, 41 and 47 invoked in the petition

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, "Pirbhai v Diamond Trust Bank Kenya Limited (Petition E015 of 2026) [2026] KEELRC 2429 (KLR)", Case Analysis (2026). ELRC No. E015 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2429/eng@2026-08-20

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