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ELRCDismissedPetition dated 6th December 2024 (ELRC, Nairobi)

Wachira v Commercial International Bank Kenya Limited (Employment and Labour Relations Petition E204 of 2024) [2025] KEELRC 1706 (KLR)

Employment and Labour Relations Court
10 June 2025
HWHellen Wasilwa
1,228 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that you cannot strike out a constitutional employment petition through a preliminary objection without first hearing the evidence at a full hearing.

What this practically means

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Executive summary

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The Respondent filed a Notice of Preliminary Objection dated 30th December 2024 against the Petitioner's petition dated 6th December 2024, contending that the petition offends the doctrine of constitutional avoidance and abuses the constitutional jurisdiction given Rule 10(3) of the Employment & Labour Relations Court Rules, 2024. The Petitioner, formerly employed as Senior Branch Manager (Westlands Branch), alleged irregular extension of her probation affecting her mortgage interest rate, attempted salary reduction and redeployment, redesignation, wrongful accusation of poor performance and placement on a performance improvement plan, stress-related illness, and constructive dismissal culminating in her resignation on 5th September 2024. The Respondent argued that all reliefs sought were available in an ordinary claim, relying on authority warning against trivialising constitutional litigation. The Petitioner countered that Articles 23, 162(2)(a), 165 and 258(1) confer jurisdiction, that the pleaded constitutional violations required evidence to be tested at a full hearing, and that the doctrine of constitutional avoidance does not divest the court of jurisdiction. The court agreed that determining whether constitutional violations existed would be premature without hearing the parties and would require an inquiry into facts and evidence, going beyond the purview of a preliminary objection as held in the Mukisa Biscuit case. The preliminary objection was dismissed with costs in the petition, and the parties were directed to proceed with the main petition.

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 offends the doctrine of constitutional avoidance
  2. 2.Whether the Petition is an abuse of the constitutional jurisdiction given Rule 10(3) of the Employment & Labour Relations Court Rules, 2024
  3. 3.Whether the preliminary objection can stand where its determination would require inquiry into facts and evidence

Key legal issues

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01

Whether the constitutional petition should be struck down for invoking constitutional jurisdiction where an ordinary claim lies

Holding

The preliminary objection cannot stand because whether constitutional violations exist is premature and requires evidence at a full hearing

Reasoning

The court held that it would be premature to determine whether any constitutional violations exist without hearing the parties. The doctrine of constitutional avoidance was invoked by the respondent, but assessing whether an adequate alternative forum is appropriate or whether violations are pleaded would require delving into facts and evidence, which falls outside the purview of a preliminary objection as held in the Mukisa Biscuit case. The petition was allowed to proceed to full trial.

p. 3

Legal principles established

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  • A preliminary objection cannot be sustained where determination would require an inquiry into facts or evidence

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.The parties to proceed with the main petition
  3. 3.Costs in the petition

The bench

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

HW
majority

Wrote the judgment

Jurisdiction invoked
Articles 23 and 162(2)(a) of the Constitution read with Section 12 of the Employment and Labour Relations Court Act

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 preliminary objection as it is cannot therefore stand and is dismissed. The parties to proceed with main petition. Costs in petition.
p. 3Final orders - dismissal of preliminary objection
This would also entail delving into the issue of evidence/facts which then goes beyond the purview of a preliminary objection as held in the Mukisa Biscuit case.
p. 3Scope of a preliminary objection

Issues in the judgment

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minor

Court refers to the applicants/respondent as 'applicants' and petitioner as 'petitioners' in plural, inconsistent with the singular parties described

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, "Wachira v Commercial International Bank Kenya Limited (Employment and Labour Relations Petition E204 of 2024) [2025] KEELRC 1706 (KLR)", Case Analysis (2025). Petition dated 6th December 2024 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1706/eng@2025-06-10

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