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ELRCDismissedPetition (Employment and Labour Relations Court, Nairobi) — Petition filed 3rd December 2018

Anthony Kibandi Watuku v Industrial and Commercial Development Corporation [2021] KEELRC 76 (KLR)

Employment and Labour Relations Court
20 December 2021
7,002 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a former ICDC employee's Sh10 million claim, ruling that unpaid salary and benefits are contract disputes, not constitutional rights violations.

What this practically means

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Executive summary

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The petitioner, a former Senior ICT Officer (later Principal ICT Officer) of the Industrial and Commercial Development Corporation employed from 2006 until his resignation on 7th April 2017, petitioned the ELRC claiming violations of Articles 26, 27, 28, 40, 41, 43 and 47 of the Constitution. He alleged systematic bias in promotion and appraisal, a malicious warning letter, unfair parking surcharges, unpaid back pay, pension, acting allowance, salary adjustments, bonuses, overtime, leave pay, occupational disease from long working hours, and constructive dismissal, seeking special damages of Kshs 10,003,929.90 and general damages. The respondent denied all violations, contending that promotions and appraisals followed policy, the warning was justified, ex-gratia payments were proper, and that contractual disputes could not be raised constitutionally. The court framed three issues: striking out irregularly obtained documents; whether the claim should have been commenced otherwise than by petition; and entitlement to relief. It declined to expunge the documents, holding no prejudice was shown. It found the petitioner's claims of bias, discrimination and unfair labour practices unproved; held that straightforward contractual employment disputes cannot be elevated to constitutional violations, branding the petition an abuse of process; found the underpayment claims barred by laches; and held there was no constructive dismissal. The petition was dismissed in its entirety with no order as to costs, the court having regard to the petitioner's long service. Judge Mathews N. Nduma delivered the judgment at Nairobi on 20th December 2021.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court should strike out and expunge from the record the documents identified by the respondent in the application dated 31st May, 2021 for having been obtained irregularly and without authority of the respondent
  2. 2.Whether the claim brought in this petition ought to have been commenced otherwise than by way of a Constitutional Petition
  3. 3.Whether the Petitioner is entitled to the reliefs sought in the petition

Key legal issues

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01

Whether documents allegedly obtained irregularly should be struck out

Holding

No basis was laid as to how inclusion of the documents would prejudice the respondent; application to expunge declined.

Reasoning

Applying the public-interest balancing in Conway v Rimmer as discussed in Baseline Architects v NHIF, the court found no demonstration of harm or prejudice from the impugned documents. No foundation was laid in the replying affidavit showing injury to public interest or to the respondent, so the documents remained on the record.

p. 7
02

Whether claims of unpaid contractual benefits may be brought as a constitutional petition

Holding

No — such claims must be brought by memorandum of claim; dressing contractual disputes as rights violations is an abuse of process.

Reasoning

The court held that disputes over back pay, pension, bonus, overtime, acting allowance and accrued leave arise from the contract of employment and should be litigated under the ELRC Act, 2014 and Procedure Rules, 2016, not as constitutional violations of Articles 40 and 260. Invoking the Constitution over straightforward contractual disputes was condemned as abuse of process.

p. 8
03

Whether the petitioner proved unfair labour practices, discrimination and constructive dismissal

Holding

Petitioner failed to prove bias, discrimination or constructive dismissal; the claims were dismissed.

Reasoning

The evidence showed salary increases and a promotion to Grade 5, a justified warning after due process, and appraisals conducted under policy with appeal mechanisms. The petitioner produced no documented chronology of harassment or discrimination, and his resignation was voluntary rather than constructive dismissal.

p. 8
04

Whether alleged underpayments were defeated by limitation/laches

Holding

Yes — largely caught by laches having arisen more than three years before suit.

Reasoning

The court found the ex-gratia payments legitimate where increments would have breached salary scale, and noted the petitioner never objected contemporaneously. The alleged underpayments arose more than three years before the action, falling foul of the doctrine of laches.

p. 8

Legal principles established

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  • A party invoking Article 22(1) must show the rights said to be infringed and the basis of the grievance — the Anarita Karimi Njeru principle of a link between party, constitutional provision and manifestation of contravention.
  • A dispute regarding failure by an employer to pay benefits arising from a contract of employment cannot be elevated to a constitutional matter; such claims should be brought by memorandum of claim under the ELRC Act and Rules.
  • Discipline and promotion are the prerogative of management provided due process is followed.

Court orders

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  1. 1.The invitation to strike out and/or expunge the impugned documents is declined
  2. 2.The petition is dismissed in its entirety

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 22(1) of the Constitution of Kenya, 2010 (enforcement of Bill of Rights) before the Employment and Labour Relations Court

Relief refused

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Declaration of infringement of Articles 26, 28, 40, 41, 43 and 47

Petitioner failed to prove violations; claims held devoid of merit

p. 8

Special damages of Kshs 10,003,929.90 and general damages

Petitioner failed to prove on a balance of probabilities that he was owed any of the items under paragraph 125

p. 8

Costs

No order as to costs — 'dismissed with no order as to cost taking into account the long and good service the petitioner had given the respondent.'

Quotable passages

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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 petition therefore lacks merit in its entirely and is dismissed with no order as to cost taking into account the long and good service the petitioner had given the respondent.
p. 8Final orders — dismissal of petition
A dispute regarding failure by an employer to pay benefits arising from a contract of employment cannot be elevated to a constitutional matter and violation of property rights under Articles 40 and 260 of the Constitution.
p. 8Abuse of constitutional process for contractual claims
Discipline and promotion are the prerogative of management provided due process is followed.
p. 7Management prerogative and due process
the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement.
p. 8Anarita Karimi Njeru principle (as cited in CCK v Royal Media Services)
claims of statutory violations cannot give rise to constitutional violations
p. 8Turkana County Government principle as cited

Issues in the judgment

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minor

Inconsistent spelling of the petitioner's name (Watuku/Watiku) and of the HR Manager (Faith Diama Neire/Nene) within the judgment

minor

Contradiction on date of employment commencement: petition recites employment on 27th May, 2006 but the determination states 27th February, 2006

minor

Contradiction on date of resignation: letter dated 7th April, 2017 but paragraph 66 states the petitioner 'ceased to be an employee of the respondent upon his resignation on 7th May, 2007'

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, "Anthony Kibandi Watuku v Industrial and Commercial Development Corporation [2021] KEELRC 76 (KLR)", Case Analysis (2021). Petition (Employment and Labour Relations Court, Nairobi) — Petition filed 3rd December 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/76/eng@2021-12-20

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