Harry Opiyo Ochieng v iHub Limited
The bottom line
#A Kenyan employment court ruled that unfair termination disputes belong under the Employment Act, not constitutional petitions, but converted the case rather than dismissing it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of preliminary objection was proper and merited
- 2.Whether the petition offends the doctrine of constitutional avoidance
Key legal issues
#Whether the notice of preliminary objection was proper and merited — does the petition offend the doctrine of constitutional avoidance?
Yes. The cause of action related to the fairness of termination of employment, a matter comprehensively governed by the Employment Act; the petition disclosed no cause outside statutory unfair termination, so the constitutional jurisdiction need not be invoked and the objection was upheld.
The court applied the Mukisa Biscuit test that a preliminary objection must raise a pure point of law. It found it undisputed that the cause of action concerned termination of the employment contract. Fairness in termination and its remedies are comprehensively provided under the Employment Act. Following the constitutional avoidance principle in S v Mhlungu, approved by the Court of Appeal in Wajir Wasco, where a case can be decided without reaching a constitutional issue, that course should be followed. The objection was therefore merited.
Whether section 45(3) of the Employment Act (13-month continuous service threshold) barred the petitioner from filing an ordinary unfair termination claim
No. The petitioner was mistaken: section 45(3) was declared unconstitutional by the High Court in Momanyi v Attorney General and that holding was upheld by the Court of Appeal, so any employee may file an unfair termination claim regardless of length of service.
Having served only 11 months and 22 days, the petitioner argued that section 45(3) barred an ordinary claim and justified the constitutional petition through Rule 10(3) of the ELRC Procedure Rules, 2024. The court held the petitioner mistaken: the High Court (Lenaola J) in Momanyi v Attorney General declared section 45(3) unreasonable and invalid to the extent of its inconsistency with the Constitution, and the Court of Appeal upheld that holding in Samuel G. Momanyi v SDV Transami Kenya Ltd.
What disposition follows where a constitutional petition offends constitutional avoidance — strike-out or conversion?
The petition was deemed an ordinary claim under section 20 of the ELRC Act and is to be decided as such; parties to file witness statements and mention fixed for pre-trial directions.
Although the preliminary objection succeeded, the court declined to strike the petition out. Relying on section 20 of the Employment and Labour Relations Court Act, which directs that cases are not to be decided on technicalities, it deemed the petition a claim and directed both parties to file witness statements, with the respondent at liberty to file a replying affidavit or witness statement, and fixed mention for 28 October 2026 for pre-trial directions. The unfair-termination dispute therefore continues as a statutory claim.
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or judicial discretion is sought
- Where a dispute can be decided without reaching a constitutional issue, that is the course the court should follow (doctrine of constitutional avoidance)
- Section 45(3) of the Employment Act, having been declared invalid, does not bar any employee from complaining of unfair termination regardless of length of service
- The ELRC is not to decide cases on technicalities and may deem a constitutional petition to be an ordinary claim under section 20 of the ELRC Act
Court orders
#- 1.The Notice of Preliminary Objection by the respondent, dated 7th May 2026, is upheld with costs in the cause.
- 2.The petition is deemed to be a claim and is to be decided as such.
- 3.The response to be filed and witness statements by both parties.
- 4.The respondent is at liberty to file a replying affidavit or witness statement in response to the petition.
- 5.Mention on 28th October, 2026 for pre-trial directions.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22(1) and 162(2)(a) of the Constitution of Kenya, 2010; section 12 of the Employment and Labour Relations Court Act
Relief refused
#Declarations of violation of constitutional rights under Articles 27(1), 28, 31(c), 41(1) and 47 as framed in the constitutional petition
Petition offends the doctrine of constitutional avoidance; fairness in termination and remedies are comprehensively provided under the Employment Act, 2007
Strike-out of the petition, as sought by the respondent through the preliminary objection
Court declined to strike out; invoking section 20 of the ELRC Act it deemed the petition an ordinary claim to be decided as such
Costs
The Notice of Preliminary Objection is upheld with costs in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Notice of Preliminary Objection by the respondent, dated 7th May 2026, is upheld with costs in the cause.
The petition is deemed to be a claim. The response to be filed and witness statements by both parties.
It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
“I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”
I find the law is settled. Any employee can file a claim in court alleging unfair termination or breach of contract.
I wholly agree and as I have shown above, section 45(3) is unreasonable and has the opposite of what the object of the Employment Act was intended to be.
Issues in the judgment
#Date inconsistency: grounds of opposition dated 7th May 2028, but the ruling twice refers to the preliminary objection as dated 7th May 2026 — evident typographical error.
Case citation garbled in the text for the Mukisa Biscuit authority; evidently [1969] EA 696.
Article number misprinted in relief (b); 'al(I)' evidently intended as Article 41(1).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harry Opiyo Ochieng v iHub Limited", Case Analysis (2026). ELRC Petition No. E115 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2753/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.