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Ngure v Tear Fund (Employment and Labour Relations Petition E156 of 2022) [2023] KEELRC 1324 (KLR)

Employment and Labour Relations Court
4 May 2023
NMNzioki Wa Makau
3,055 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled that constitutional petitions must meet strict thresholds, but gave a dismissed-claim employee a second chance through a normal suit.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court at Nairobi, delivered by Nzioki Wa Makau J on May 4, 2023, determined a preliminary objection dated January 16, 2023 raised by the Respondent against a Petition filed by the Petitioner on August 19, 2022. The Petitioner, formerly employed as Lead International Accountant - Donor Compliance, alleged constitutional violations in the termination of her employment. The Respondent objected that the Petition failed to meet the threshold for a constitutional petition, that the issues were statutory employment disputes, and that the alleged violations did not amount to breaches of the Bill of Rights. The Respondent relied on the Anarita Karimi Njeru threshold, the Court of Appeal decision in Sumayya Athmani Hassan, and other authorities contending that constitutionalised statutory rights should be pursued through the governing legislation. The Petitioner countered that the provisions cited formed the legal foundation of the Petition, that the objection raised factual issues improper for a preliminary point under Mukisa Biscuits, and that labour rights enjoy constitutional protection. The court agreed with the Respondent, holding that the grievances arose from termination of employment and that the alleged violations of Articles 3(1), 10, 19, 20, 25(1), 27, 28, 31, 41 and 47(1) were not particularized and were capable of being articulated in a normal suit. However, the court declined to strike out the Petition, treating the choice of form as merely irregular, and directed the Petitioner to refile her claim as a normal claim within 14 days. There was no order as to costs.

Questions the Court framed

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

  1. 1.Whether the Petition meets the legal threshold for a Constitutional Petition requiring the interpretation and/or application of the Constitution
  2. 2.Whether the issues raised are constitutional issues or statutory employment disputes
  3. 3.Whether the Petition should be struck out for failure to meet the Anarita Karimi Njeru threshold

Key legal issues

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01

Whether the Petition met the threshold of a Constitutional Petition

Holding

The Petition did not meet the threshold as there was no particularization of the alleged constitutional violations and the grievances were essentially statutory employment issues

Reasoning

The court found the Petitioner's grievances stem from termination of employment and its manner, which are capable of being articulated in a normal suit. No particularization of the alleged violations of the cited Articles was provided. The court adopted the Court of Appeal's position in Sumayya Athmani Hassan that where legislation has been enacted to give effect to a constitutional right, a litigant should not found a cause of action directly on the Constitution.

p. 6
02

The appropriate remedy where a claim is filed as a Petition but does not meet the constitutional petition threshold

Holding

The filing by way of Petition was merely irregular; the claim should be refiled as a normal claim rather than struck out

Reasoning

The court accepted the preliminary objection that this was not a petition proper. However, since the defect was in form rather than substance, the court declined to strike out the Petition entirely and instead directed refilement as a normal claim, granting no order as to costs.

p. 6

Legal principles established

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  • Not every dispute involving an infraction of the Constitution meets the threshold for a Constitutional Petition; where a claim is brought by way of Petition without meeting that threshold, the remedy may be refilement as a normal claim rather than striking out.

Court orders

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  1. 1.The Petitioner directed to refile her claim as a normal claim within 14 days
  2. 2.No order as to costs for the Petition

The bench

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

NM
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution; Section 12(1) of the Employment and Labour Relations Court Act No. 2 of 2011

Relief refused

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Striking out of the Petition with costs

The court found the mode of bringing the claim merely irregular, warranting refilement as a normal claim rather than striking out

p. 6

Costs

No order as to costs for the Petition herein

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 Court agrees and is persuaded by the preliminary objection that this is not a petition proper.
p. 6Threshold of a constitutional petition
not every dispute where there is an infarction of the Constitution elevates said dispute to the threshold for a Constitutional Petition as was filed here
p. 6Constitutional infraction not sufficient to elevate a dispute
As the Claimant has moved the Court in the form of a Petition and because that is merely irregular, I direct that the Petitioner refile her claim as a normal claim within 14 days of today.
p. 6Final orders - refilement direction
There shall be no order as to the costs for the Petition herein.
p. 6Costs order

Issues in the judgment

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minor

Case title, case number, and parties' names not provided in the judgment extract; only 'Petitioner/Respondent' and 'Respondent/Objector' designations appear

minor

Paragraph 1 and heading content appear missing or blank at the start of the judgment

minor

Petitioner is labelled 'Petitioner/Respondent' and Respondent 'Respondent/Objector' without actual party names disclosed

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Ngure v Tear Fund (Employment and Labour Relations Petition E156 of 2022) [2023] KEELRC 1324 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1324/eng@2023-05-04

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