Stella Atambo v The Hon. Chief Justice of the Republic of Kenya & Judicial Service Commission

The complaint is live and continuous. The Petitioner must answer, within fourteen days, allegations framed as fact without disclosure of evidence or provenance. Article 25(c) makes the right to a fair trial non-derogable, and an act that is a nullity is a nullity from inception, as held in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC). Should the petitioner’s case be merited in that the Respondents illegally obtained the materials informing their two notices to show cause, then any subsequent proceedings against her will be void ab initio. Until a determination on the same is made, and further noting the extremely evasive and dilatory responses to the very simple and straightforward question of provenance of said materials by the respondents, the petitioner should be heard. The petitioner submitted that the doctrine of ripeness and justiciability is not absolute. In Lubengu v Judicial Service Commission & another; Ojiambo t/a Acorn Law Advocates LLP (Interested Party) [2025] KEHC 18839 (KLR), the court determined a petition challenging Judicial Service Commission’s process and held that the doctrines of ripeness and exhaustion are not absolute and were not properly invoked. It held that an officer under inquiry is entitled to notice, disclosure of evidence and a hearing before any adverse decision. In Kamande v JSC (Petition E005 of 2025) [2025] KESC 48 (KLR), the court treated the JSC's disciplinary process as administrative action subject to Articles 47 and 50 of the Constitution. It held that at each of the four stages of paragraph 25(1) and (2) of the Third Schedule, including the stage where the officer is invited to respond, the Chief Justice must ensure fairness. Fairness therefore applies from the first step, and the Court is not confined to a later stage. Lack of exhaustion does not bar the Petition. The doctrine applies where an alternative forum exists that can grant the relief sought, as held in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR); Muthinja & another v Henry & 1756 others [2015] KECA 304 (KLR). The Respondent have not named any such forum. They refer ELRC NAIROBI RULING PETITION NO. E125 OF 2026 2

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to institutional and statutory mechanisms. The notice is the first step of the very process under challenge. Nothing in the Judicial Service Act permits the Petitioner to ask that process to declare its own initiating notice unconstitutional. Even where a mechanism exists, courts recognise exceptions, including where the remedy is inadequate and the claim is genuine, contending the violation/imminent violation of a constitutional right. Article 22(1) admits "any person", and Article 22(3)(b) and (d) direct that formalities be kept to a minimum and that the Court not be unreasonably restricted by technicalities. The Petition rests on Articles 25(c), 47 and 50(1) and the statutory duty of disclosure. The 14-day response period was running and almost lapsing when the Petition was filed, and as such the petition was proper to enjoin the impending crystallisation of a violation of the petitioner’s right. A petition is the proper vehicle. This Court's jurisdiction over employment disputes and constitutional questions arising from them is founded on Articles 162(2)(a), 165(3)(b), 22 and 23(3) and section 12 of the ELRC Act. The Supreme Court has dealt with this issue before. In Kamande, the court heard a petition against the JSC disciplinary process after being satisfied that it met the Anarita Karimi Njeru v Republic [1979] KLR 154 threshold. The Rules of Procedure are permissive. Unless the Court is shown that a Party chose one procedure over the other to avoid a legal requirement, for instance on time-bar, there is no reason to disallow a Claim or Petition simply because one should have been filed instead of the other. Sections 41, 43, 45 and 49 of the Employment Act provide remedies for termination, and none has occurred. The Respondents cannot say the Petition is premature and also that it should have been a claim for a wrong that has not yet happened. Article 22(1) addresses the threatened violation. The wrongs are constitutional. The Petition raises Articles 25(c), 31, 47 and 50(1), the relationship between a disciplinary process and subsisting court orders, and the Article 172(1)(c) regime. Its prayers for ELRC NAIROBI RULING PETITION NO. E125 OF 2026 3

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certiorari and prohibition are judicial review remedies available under Article 23(3). The Petitioner asks the Court to find that the Petition is ripe, justiciable, and properly pleaded; that exhaustion is no bar; that the Petitioner's alleged failure to request the material is no bar; that a petition is the proper vehicle; and that the 2nd Respondent is properly joined. The 1st Respondent's counsel attended and held brief for the 2 nd Respondent and submitted that the Petitioner's complaint is, in substance, a fact-specific administrative-fairness challenge to a disciplinary Notice to Show Cause, and ought not to have been brought as a constitutional petition. Under Rule 10 of the Employment and Labour Relations Court (Procedure) Rules (ELRC Rules), a person who seeks to initiate a petition should do so in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. A person may seek enforcement of a constitutional right in a statement of claim. While the petitioner seeks the enforcement of constitutional rights, she has not done so under the Rules. The court has established that the constitutional petition route is reserved for disputes that genuinely require interpreting or applying the Constitution against a given statute, and is not available merely because a dispute touches on constitutional provisions. In Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] KECA 107 (KLR), the court struck out a petition which relied directly on constitutional provisions to enforce what were, in substance, Employment Act and Labour Relations Act rights, holding it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. Hence, the claim did not disclose a cause of action anchored on the Constitution. The Court has applied the same principle to employment-related petitions. In Ngure v Tear Fund [2023] KEELRC 1324 (KLR), the Court held that where the rights allegedly violated can be articulated in an ordinary suit, ELRC NAIROBI RULING PETITION NO. E125 OF 2026 4

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and no order is sought requiring interpretation or application of the Constitution, the matter should not be addressed through a constitutional petition. The rationale is that not every dispute involving an alleged constitutional breach meets the threshold for a Constitutional Petition. The principle points to the doctrine of constitutional avoidance. In Njue v Kenya Maritime Authority & another [2023] KEELRC 820 (KLR), in a petition alleging unlawful interdiction and dismissal, the court struck out the petition because the Employment Act already provided an adequate remedy which the petitioner had not shown to be inadequate; the Court, citing Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR, held that the Constitution is not a general substitute for the normal procedures for invoking judicial control of administrative action. Where infringements of rights can be found, a claim under substantive law, the proper course is to bring the claim under that and not under the Constitution. A constitutional petition's value will be diminished if it is allowed to be misused as a general substitute for the normal procedures. Rule 10(3) of the ELRC Rules allows a party to enforce any constitutional right in a statement of claim or other suit, and that absent a demonstrated constitutional question, the petition should be struck out. The 1st respondent submitted that, stripped of its constitutional framing, the Petition is a complaint that a Notice to Show Cause issued under paragraph 25 of the Third Schedule to the Judicial Service Act is procedurally unfair and evidentially tainted. It is a fact-bound administrative-fairness dispute as addressed in Sumayya Athmani Hassan, and does not require, and is not assisted by, constitutional petition machinery. No order is sought requiring interpretation of a constitutional provision. The reliefs sought, certiorari and prohibition, are classic judicial review remedies equally available under Article 23(3) through an ordinary claim, where they are more naturally pursued. ELRC NAIROBI RULING PETITION NO. E125 OF 2026 5

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Rule 10(3) of the ELRC Rules, as applied in Iloti & 14 others (Acting on Their Behalf and on Behalf of Dock Workers Union of Kenya) v Sang & another; Dock Workers Union of Kenya (Interested Party) (Petition E004 of 2025) [2025] KEELRC 808 (KLR) (13 March 2025) (Ruling), forecloses any suggestion that the Petitioner loses a remedy by proceeding in the ordinary suit. Any constitutional right may be enforced in a statement of claim or other suit. The 1st Respondent submitted that the Petition does not raise a genuine question requiring interpretation or application of the Constitution, and is not a proper petition. The matter should have been filed as an ordinary claim and not as a constitutional petition, and the Petition should be struck out on that ground and dismissed with costs. Determination As outlined above, the court moved the parties to address whether this is a proper petition. The petition asserts that it is ripe and justiciable because it alleges constitutional rights violations that can only be addressed through the constitutional petition route. The 1st respondent argues that, under Rule 10(3) of the ELRC Rules, a party may seek enforcement of constitutional rights and freedoms through a Memorandum of Claim. The court holds a specialised mandate under Article 162(2)(a) of the Constitution. Such mandate extends to employment and Labour relations rights. Article 162(3) of the Constitution, read with Section 12 of the Employment and Labour Relations Court Act, further elaborates the court's mandate and jurisdiction. Further entrenching the court's jurisdiction, Article 41 of the Constitution affirms that every person has the right to fair labour practices. Therefore, to secure the right to fair labour relations, the rights under Article 41 of the Constitution have been articulated in the Employment Act and the Labour Relations Act. These statutes directly speak to Article ELRC NAIROBI RULING PETITION NO. E125 OF 2026 6

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162(2) and (3) of the Constitution. The rights in employment and labour relations are not only constitutional, but are also outlined in statute. Therefore, where the Constitution or an Act of Parliament prescribes a clear procedure for redress of any particular grievance, that procedure should be strictly followed. In Almer Farm Limited v National Land Commission & 2 others [2021] KECA 469 (KLR) and Muroki Estates Limited v Mengo Farm Limited [2024] KECA 1101 (KLR) the courts have affirmed the position in in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), that where an Act of Parliament has prescribed the procedure to be followed in addressing a given grievance, it should be strictly followed. In Globe Developers Limited v Nairobi City County [2024] KECA 1503 (KLR), the court restated that even where the court is moved in a matter that a quasi-judicial body or a tribunal should ordinarily address, such jurisdiction cannot be ousted for convenience. Doing so would clearly breach constitutional and statutory provisions. The petition is about, in substance, a fact-specific administrative-fairness challenge to a disciplinary Notice to Show Cause issued by the 1st respondent against the petitioner. As submitted by the 1st respondent, under Rule 10(3) of the ELRC Rules, a party may urge a case of constitutional rights and freedoms violation under a Memorandum of Claim. This procedure allows a party to urge her case, file the necessary evidence to be relied upon, and serve the respondent. Under the ELRC Rules, once a respondent is served, the respondent has a right of reply through a Memorandum of Response. This gives the respondent a fair chance to state its case and to serve the claimant. Such procedure allows each party to urge its case on the merits. Based on the filed claim and response, under the ELRC Rules, parties may opt to rely on the record or call evidence. ELRC NAIROBI RULING PETITION NO. E125 OF 2026 7

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Therefore, moving the court through a constitutional petition, which allows a respondent to file a Replying Affidavit, a crucial stage under the ELRC Rules is lost. The filing of a Memorandum of Response attaching the necessary evidence to be relied upon in evidence. This case is an instant example. After the 1 st respondent's response, the petitioner filed the application dated 21 May 2026 challenging the Replying Affidavit filed by the 1 st respondent. Had the suit been initiated through a Memorandum of Claim, such a challenge would have been unnecessary. The matter would have been heard and determined on the merits long ago. The case of Hassan v Simidi & another [2019] KECA 107 (KLR) becomes relevant. Upon filing a petition, this was challenged, and the court held: The Article 41 rights are enacted in the Employment Act and Labour Relations Act. The two Acts and the rules made thereunder provide adequate remedy and orderly enforcement mechanisms. The 1 st respondent filed a petition directly relying on the provisions of the Constitution for enforcement of contractual rights governed by the Employment Act without seeking a declaration of invalidity of the provisions of the Employment Act or alleging that the remedies provided therein are inadequate. The petition did not raise any question of the interpretation or application of the Constitution. The petition, premised on the challenged Notices to Show Cause issued by the 1st respondent against the petitioner and the orders sought, does not raise any need to interpret the Constitution over any rights not provided for under statute. The question of the petition being ripe and justiciable is not similar to the petitioner seeking a declaration of invalidity of the provisions of any statute that does not give sufficient remedies in the given case. ELRC NAIROBI RULING PETITION NO. E125 OF 2026 8

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Therefore, whereas Article 22(1) of the Constitution provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened; however, a claim premised on employment, such a party should move the court under Memorandum of Claim and argue a claim of constitutional violations, judicial review and other rights violations in terms of Rule 10(3) of the ELRC Rules. Such procedures give each party the latitude to urge its case on the merits without challenging the rights of the persons making such response(s) as herein done. See County Assembly of Migori & 3 others v Ouma & 2 others [2025] KECA 6 (KLR), where the court cautioned that not all employment disputes should be converted to constitutional petitions unless one can demonstrate that the remedies under statute are insufficient. This is the case in the instant petition. An ordinary dispute invoking the constitutional petition route. This is unnecessary. It is not a proper petition. The court invited parties to address the issues above. There shall be no orders on costs. Accordingly, as the petition is unnecessary, it is struck out. Each party to bear its own costs. Delivered in open court this 8th day of October 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… ……… ELRC NAIROBI RULING PETITION NO. E125 OF 2026 9 and …………………………………..

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