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Court of AppealPartially AllowedNot stated in judgment· [2019] KECA 107 (KLR)

Sumayya Athmani Hassan v Paul Masinde Simidi & 1 other

Court of Appeal of Kenya
6 December 2019
EGE. M. GithinjiWKW. KaranjaMartha Karambu KoomeM. K. Koome
4,074 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out a Kshs 3 million award because the ex-employee wrongly sued using the Constitution instead of the Employment Act.

What this practically means

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Executive summary

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The appellant, the Managing Director/CEO of National Oil Corporation of Kenya, appealed against an ELRC judgment of 30th November 2015 awarding the 1st respondent (a former Internal Audit Manager) Kshs. 3,000,000 in general damages for violation of his right to fair labour practices under Article 41 of the Constitution, following termination and later interdiction of his employment. The 2nd respondent cross-appealed against the damages award. The central ground of appeal was that the 1st respondent's contract of employment had no statutory underpinnings rendering breach actionable by constitutional petition rather than ordinary suit. The Court of Appeal, in a unanimous judgment, adopted the constitutional-avoidance principle endorsed by the Supreme Court in the Communications Commission case and the persuasive South African authority of Barbara De Klerk, holding that where legislation (the Employment Act and Labour Relations Act) has been enacted to give effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution without challenging the statute or alleging its remedies are inadequate. The Court held the interdiction and termination dispute was purely contractual/employment-based, not a constitutional issue, so the ELRC acted in excess of jurisdiction. The Court rejected the argument that jurisdiction was raised for the first time on appeal, noting the replying affidavit and written submissions at trial had raised the competency of the petition. The appeal was allowed, the ELRC judgment set aside in its entirety, and the cross-appeal dismissed.

Key legal issues

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01

Whether a litigant may enforce contractual employment rights by way of a constitutional petition under Article 41 where the Employment Act already gives effect to the right to fair labour practices

Holding

No. The petition was incompetent and the ELRC acted in excess of jurisdiction.

Reasoning

The court adopted the constitutional-avoidance principle from Barbara De Klerk and the Supreme Court's Communications Commission decision. Where Parliament has enacted legislation (the Employment Act and Labour Relations Act) to give effect to Article 41 rights, providing adequate remedies and enforcement mechanisms, a litigant cannot bypass that legislation by founding a cause of action directly on the Constitution unless challenging the statute's validity or the adequacy of its remedies.

p. 8
02

Whether the jurisdictional objection could be raised for the first time on appeal

Holding

Yes — the objection had in fact been raised in the trial court through the replying affidavit and written submissions, though not decided.

Reasoning

The Court found the 1st respondent's counsel mistaken in asserting jurisdiction was never raised. The Acting HR Manager's replying affidavit pleaded that the dispute was strictly employment-based and that the petition ought not be entertained; counsel's written submissions likewise questioned the competency of the petition. The trial court simply failed to decide those issues.

p. 7
03

Whether the ELRC has jurisdiction to enforce Bill of Rights provisions in employment matters

Holding

Not decided — the appeal did not concern the ELRC's jurisdiction to enforce Article 41 rights; it concerned whether a purely contractual dispute could be brought as a constitutional petition.

Reasoning

Counsel for the 1st respondent argued the ELRC lacked Article 23(3) jurisdiction, but the Court distinguished this from the actual issue. Citing Mugendi v Kenyatta University, the Court noted ELRC has jurisdiction to enforce Article 41 rights and ancillary fundamental rights within matters in its statutory jurisdiction. The real question was different: whether a contract-governed employment grievance could be re-cast as a constitutional petition.

p. 7

Legal principles established

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  • Where legislation has been enacted to give effect to a constitutional right, a litigant may not found a cause of action directly on the Constitution without challenging the legislation or alleging its remedies are inadequate.
  • An employment dispute arising from breach of a contract of employment governed by the Employment Act is not a constitutional issue and does not, without more, disclose a cause of action anchored on the Constitution.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the lower court is set aside in its entirety
  3. 3.The cross-appeal is dismissed
  4. 4.The 1st respondent shall pay the costs of this appeal and costs in the court below to the appellant
  5. 5.There shall be no orders as to costs in respect of the cross-appeal
On appeal from
Employment and Labour Relations Court (ELRC)
Not stated in judgment
Jurisdiction invoked
First appeal to the Court of Appeal from the Employment and Labour Relations Court (per ELRC/Constitution, Art. 162(2) and related statutory framework)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sumayya Athmani Hassan v Paul Masinde Simidi & 1 other", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/107/eng@2019-12-06

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