Kariuki v New Palea Wholesallers Limited (Formerly Known as Paleah Store Limited) & another (Petition E137 of 2017) [2022] KEELRC 1451 (KLR)
The bottom line
#The Employment Court struck out a worker's constitutional petition because ordinary Employment Act remedies cannot be dressed up as constitutional claims.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this suit should be struck out for falling foul to the sub judice rule
- 2.Whether the petition has been wrongly filed in a pure employment dispute that ought to have been brought by way of a statement of claim in terms of Employment and Labour Relations Court (Procedure) Rules 2016 and the enabling statutes
- 3.Whether the petitioner is entitled to the remedies sought
Key legal issues
#Sub judice / duplication of suits
The sub judice objection failed because the magistrate's court lacked jurisdiction over the parallel cause, given the pleaded salary of Kshs 100,000
The court compared the statement of claim in Cause No. MCELRC 114 of 2021 with the petition and found same parties, issues and reliefs. However, since the claimant alleged a monthly salary of Kshs 100,000, the Chief Magistrate's Court had no jurisdiction, so the magistrate's court had to down its tools. The claimant could not be asked to elect, and the present court, properly seised with jurisdiction, could proceed.
Whether an employment dispute founded on contract should be brought as a constitutional petition
No - the remedies sought were statutory under the Employment Act and the petition was an abuse of court process
Guided by Mugendi v Kenyatta University, parties should use normal statutory procedures rather than dress contractual employment claims as constitutional issues. The reliefs sought (notice pay, severance, section 49 compensation) arise under Part VI of the Employment Act, not article 23 constitutional remedies. The pleadings also failed the Anarita Karimi Njeru precision standard, disclosing no specific violation of any right.
Limitation
The cause of action arising in 2021 was not statute barred
The court noted the cause of action arose in 2021 and was not time-barred, and that the pending magistrate's court matter could still be lawfully transferred to a court with jurisdiction upon application.
Legal principles established
#- Constitutional petitions must set out with reasonable precision the provision infringed and the manner of infringement (Anarita Karimi Njeru standard)
- Article 159(2)(d) on procedural technicalities is not a licence to misuse constitutional petitions for purely contractual employment claims
Court orders
#- 1.The petition is struck out as an abuse of court process
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution read with section 12 of the Employment and Labour Relations Court Act, 2014
Relief refused
#All reliefs sought in the petition, including declaration of unfair termination, arrears of salary, severance pay, pay in lieu of notice, 12 months' compensation, unremitted statutory deductions, general damages and certificate of service
The petition was an abuse of court process; remedies sought were statutory under the Employment Act and the pleadings failed the Anarita Karimi Njeru precision standard for a constitutional petition
Costs
No order as to costs - the petition was struck out 'with no order as to costs'
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.
In the final analysis, the petition is struck out as an abuse of court process with no order as to costs.
The disconnect between the pleadings in the petition and the remedies sought is glaring and the petition is found to be an abuse of Court process and struck out accordingly.
it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
the Chief magistrate’s Court has no jurisdiction to hear and determine the matter in cause No. Mcelrc114 of 2021
Issues in the judgment
#Party naming inconsistency: the parallel cause is rendered variously as 'Cause No. MCELRC 1114 of 2021' and 'Cause No. Mcelrc114 of 2021', and the respondent in that cause is named 'Michael Gacu Kariuki -vs- Patrick Njiru Kuria' in paragraph 19 but 'Patrick Njiru Kariuki' in paragraph 36
Prayer 'g' (general damages) appears twice in the list of reliefs and lettering thereafter is duplicated/misaligned
Inconsistent gender pronouns referring to the petitioner ('he'/'she') in the same paragraph
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v New Palea Wholesallers Limited (Formerly Known as Paleah Store Limited) & another (Petition E137 of 2017) [2022] KEELRC 1451 (KLR)", Case Analysis (2022). Petition (Employment and Labour Relations Court, Nairobi) - filed September 7, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1451/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.