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ELRCStruck OutPetition dated 04.08.2023

Orwa v Autocheck Ltd Also t/a Cheki (K) Ltd also t/a Get Gari (Gari Angalia) (Petition E155 of 2023) [2024] KEELRC 1939 (KLR)

Employment and Labour Relations Court
26 July 2024
1,915 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The petitioner, formerly commercial manager of the respondent (trading as Get Gari), filed a constitutional petition seeking 23 reliefs arising from his summary dismissal on 12.06.2023. He alleged he was denied a fair hearing, subjected to fair labour practice violations, coerced to resign, and denied pay for acting as country manager from February to April 2023, plus unpaid house allowance, bonuses, ESOP shares, leave, a staff loan conversion dispute, and various damages. The respondent filed a preliminary objection contending the petition did not meet the constitutional petition threshold, that reliefs lay in an ordinary employment claim, and that an arbitration clause in the employment agreement ousted the Court's jurisdiction under section 10 of the Arbitration Act. The respondent also denied the substantive allegations, asserting due process was followed under the Employment Act. The Court upheld the preliminary objection, holding that the petitioner pleaded no particularised constitutional violations; the facts disclosed only breach of contract and unfair termination, for which remedies were available in an ordinary memorandum of claim under the Employment Act and the Employment and Labour Relations Court Act. The petition was trapped by the avoidance principle. However, the arbitration limb of the objection failed: the Court held such a clause is a ground to stay, not strike out, proceedings under section 15(4) of the Employment and Labour Relations Court Act. The petition was struck out with costs to the respondent on 26 July 2024.

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 threshold of a constitutional petition or should have been brought as an ordinary employment claim
  2. 2.Whether the arbitration clause in the employment agreement ousts the Court's jurisdiction
  3. 3.Whether the petition is frivolous, vexatious and an abuse of court process

Key legal issues

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01

Whether the constitutional petition met the threshold for constitutional adjudication

Holding

The preliminary objection succeeded; no constitutional violations were pleaded with particularity and the remedies were available in an ordinary employment claim

Reasoning

The Court found that although the petition invoked violations of the Bill of Rights, the underlying facts disclosed only breach of contract and unfair termination of employment. The reliefs sought were available under an ordinary memorandum of claim under the Employment Act and the Employment and Labour Relations Court Act and the Court's Procedure Rules. The petition was therefore an avoidance of the proper statutory mechanism and had to be struck out.

p. 5
02

Whether the arbitration clause ousted the Court's jurisdiction

Holding

That limb of the preliminary objection collapsed; an arbitration clause warrants a stay of proceedings, not striking out

Reasoning

The respondent argued that section 10 of the Arbitration Act and the arbitration clause in the employment agreement deprived the Court of jurisdiction. The Court held that the correct remedy would be a stay and referral for conciliation, mediation or arbitration under section 15(4) of the Employment and Labour Relations Court Act, not striking out the petition. That limb of the objection therefore failed.

p. 5
03

Whether the dispute required viva voce evidence

Holding

Yes; the issues would require testing of evidence through witness testimony, which affidavit-based prosecution of the petition could not achieve

Reasoning

The Court observed that the disputed issues would require testing of evidence through taking of witness testimony. Prosecuting the matter as a petition based on affidavits would not achieve justice for the parties in the absence of a viva voce hearing, reinforcing the conclusion that the ordinary claim procedure was the appropriate avenue.

p. 5

Legal principles established

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  • A petition alleging constitutional violations must plead particularised violations; where the facts disclose a mere breach of contract and unfair termination, the claimant must pursue ordinary employment remedies and the petition is trapped by the avoidance principle
  • An arbitration clause in an employment agreement is a basis to stay proceedings, not to strike them out, per section 15(4) of the Employment and Labour Relations Court Act

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The petition is struck out with costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act

Relief refused

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All 23 prayers in the petition, including declarations of constitutional violations, compensation for unfair termination, house allowance, ESOP shares, bonuses and damages

The petition was struck out as it was trapped by the avoidance principle; the reliefs were not based on particularised constitutional violations and were available in an ordinary memorandum of claim

p. 5

Costs

The petition is struck out with costs to 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 purported prayers about violation of the Bill of Rights are not based on particularised violation of rights and fundamental freedoms
p. 5avoidance principle - pleading constitutional violations
the petition is hereby struck out with costs upon the finding that the preliminary objection is upheld as the petition is trapped by the avoidance principle
p. 5final orders - striking out
the clause would be a basis to stay the proceedings and not to strike out the proceedings as suggested for the respondent
p. 5arbitration clause - stay not striking out

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, "Orwa v Autocheck Ltd Also t/a Cheki (K) Ltd also t/a Get Gari (Gari Angalia) (Petition E155 of 2023) [2024] KEELRC 1939 (KLR)", Case Analysis (2024). Petition dated 04.08.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1939/eng@2024-07-26

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