Wairimu v Uhai East African Sexual Health and Rights Initiative (Uhai-Eashri - Herein Represented by the Board Shamim Salim, Christian Rumi, Penina Mwangi, Muthoni Ngige & Julius Kagwa) & 4 others (Constitutional Petition E222 of 2022) [2025] KEELRC 1564 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioner was constructively and unfairly terminated or whether she resigned voluntarily
- 2.Whether the compulsory leave and denial of access to work email violated Article 41 and the tenets of fair administrative action
- 3.Whether the respondents engaged in unfair labour practices
- 4.Whether the respondents violated the petitioner's Bill of Rights (Articles 27, 28, 29, 30, 31, 35, 47)
- 5.Whether the petitioner was entitled to the claimed compensation (notice, service pay, 12 months' pay) and damages
Key legal issues
#Constructive dismissal
The petitioner voluntarily resigned and failed to establish constructive unfair dismissal; the resignation defeated the initiated disciplinary process
The court found the employment ended by the petitioner's written resignation after a show cause letter. She purported to answer allegations in her resignation letter, thereby aborting the disciplinary process. Even without email access, the disciplinary process could have addressed her concerns. The toxic environment arose from her own personal relationships, not from any fundamental breach by the employer attributable to the respondents.
Unfair labour practice
No unfair labour practice was established on the test in Peter Wambugu Kariuki v Kenya Agricultural Research Institute
The court applied the test that the right to fair labour practices is drawn from Article 41(2)-(5) and related provisions and workplace conventions. Compulsory leave with pay as a preliminary investigative step did not prejudice the petitioner and did not violate the tenets of fairness under Article 41.
Bill of Rights violations
Claims for constitutional violations were abandoned in final submissions and were otherwise not established
The petitioner pleaded violations of Articles 27, 28, 29, 30, 31, 35 and 47 but in conclusive submissions sought only notice pay, 12 months' pay for unfair termination and service pay. The court treated the Bill of Rights claims as abandoned and, in any event, found them unjustified.
Compulsory leave and due process
Paid compulsory leave as a preliminary step to investigations and due process did not violate Article 41
The respondents submitted compulsory leave was facilitative of investigations and due process. Since the leave was not unpaid, the petitioner suffered no prejudice; fairness under Article 41 was not breached.
Legal principles established
#- The content and scope of the right to fair labour practices is elaborated in Article 41(2), (3), (4) and (5) of the Constitution together with constitutional and statutory provisions and workplace conventions giving effect to them
Court orders
#- 1.The petition is dismissed
- 2.Each party to bear own costs of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 41 and 47 of the Constitution as read with the Fair Administrative Action Act; petition seeking enforcement of Bill of Rights in the employment relationship
Relief refused
#Declarations of violation of Articles 27, 28, 29, 30, 31, 35, 41 and 47 and section 4 of the Fair Administrative Action Act
Claims on the Bill of Rights were abandoned in submissions and in any event not established
Six months' salary in lieu of notice, service pay and 12 months' pay for unfair termination
The petitioner resigned voluntarily; constructive dismissal not established
General damages for mental anguish and discrimination; written absolution and public apology
The petition having failed, no relief was granted
Costs
Each party to bear own costs of the petition
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 conclusion the petition is hereby dismissed with orders each party to bear own costs of the petition.
The Court returns that in view that the petitioner resigned voluntarily, the alleged unfair termination is found untenable.
The Court finds that the petitioner has failed to show a fundamental breach of the contract of service by the 1st respondent that may have constituted the alleged constructive termination by way of the resignation.
The Court agrees that the compulsory leave not being free from due pay, the petitioner was not thereby prejudiced.
The reliefs claimed as based on violation of cited provisions of the Bill of Rights will fail as not established at all and in any event, duly abandoned.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wairimu v Uhai East African Sexual Health and Rights Initiative (Uhai-Eashri - Herein Represented by the Board Shamim Salim, Christian Rumi, Penina Mwangi, Muthoni Ngige & Julius Kagwa) & 4 others (Constitutional Petition E222 of 2022) [2025] KEELRC 1564 (KLR)", Case Analysis (2025). Petition dated 19.12.2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1564/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.