Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedStatement of claim dated 12th May, 2017 (memorandum of claim)

Mbuba v Aga Khan University (Cause 895 of 2017) [2025] KEELRC 1964 (KLR)

Employment and Labour Relations Court
27 June 2025
6,337 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a worker's constitutional rights claim against her employer, ruling an ordinary employment dispute that had been settled does not become a constitutional case.

What this practically means

#

Executive summary

#
The claimant, a social scientist employed by Aga Khan University on 2nd June 2016 on a four-year fixed-term contract, alleged that from December 2016 the respondent subjected her to hostile and arbitrary performance evaluations premised on a non-existent probationary period, amounting to attempted constructive and unlawful dismissal and contravention of her constitutional rights under Articles 28, 29, 30, 41 and 47. She sought declarations, permanent injunctions and general damages. The respondent denied misrepresentation, maintained that her contract incorporated a six-month probation and appraisal regime, and that her research performance was deficient. During the pendency of the suit, an earlier ruling by Justice Mbaru declined leave to amend the claim, and the contractual complaints were settled by accord and compromise, the claimant having served her full contract term. The court therefore confined trial to the sole surviving question: whether the claimant met the criteria for elevating her complaints to constitutional questions meriting compensation under Article 23. Relying on Anarita Karimi Njeri and the principle of constitutional avoidance, the court held this was an ordinary employment dispute; the appointment letter she signed provided for six months' probation, and the settlement of the contractual grievances destroyed the foundation of the constitutional claim. The suit was dismissed with costs.

Questions the Court framed

#

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

  1. 1.Whether the claimant has demonstrated and met the criteria for elevating her complaints to constitutional questions to merit compensation under article 23 of the Constitution
  2. 2.Whether the respondent contravened the claimant's rights under articles 28, 29, 30, 41 and 47 of the Constitution
  3. 3.Whether the claimant's contract provided for a probationary period and evaluation

Key legal issues

#
01

Whether the dispute amounted to a constitutional question

Holding

No - it was an ordinary employment dispute not meeting the constitutional threshold

Reasoning

The court held that not every workplace grievance meets the constitutional threshold. The claimant's complaints revolved around alleged breaches of her employment contract, which had been amicably resolved, and she had served her full term. Applying the principle of constitutional avoidance, the court found the emotions and voluminous documentation insufficient to elevate the dispute to a constitutional question justifying compensation under Article 23.

p. 12
02

Whether the claimant's contract contained a probationary clause

Holding

Yes - the appointment letter signed by the claimant made reference to six months' probation

Reasoning

The claimant's plea that her contract of 2nd June 2016 had no probation clause was contradicted by the letter itself at page 86 of her bundle, which referenced six months' probation and which she admitted signing. She also testified she did not object to evaluation as it was required before confirmation. An earlier ruling by Lady Justice Wasilwa had already permitted evaluation subject to due process.

p. 11
03

Pleading standards

Holding

The claimant's statement of claim was prolix and convoluted, contrary to the basic rules of pleadings

Reasoning

The court criticised the pleading for being excessively long, including evidence and legal arguments, and not logically ordered, which forced it to painstakingly sift through pleadings, witness statements and submissions to identify the real cause of action. This is an observation rather than the basis of the decision.

p. 10

Legal principles established

#
  • A party seeking constitutional redress must set out with reasonable precision the complaint, the constitutional provisions infringed and the manner of infringement (Anarita Karimi Njeri rule)
  • Where a remedy is available under other legislation, a court will usually decline to determine an alleged breach of the Declaration of Rights (constitutional avoidance)
  • Where parties have compromised contractual complaints and the employee served the full contract, a claim for violation of constitutional rights based on the same facts cannot be sustained

Court orders

#
  1. 1.The suit is found without merit and is hereby dismissed with costs

The bench

#

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

Wrote the judgment

Jurisdiction invoked
Article 23 of the Constitution (claim for compensation for contravention of Articles 28, 29, 30, 41 and 47) within the Employment and Labour Relations Court's employment jurisdiction

Relief refused

#

Declaration that the respondent contravened the claimant's rights under articles 28, 29, 30, 41 and 47 of the Constitution

The claim was an ordinary employment dispute whose contractual complaints had been amicably resolved; constitutional avoidance applied and no stand-alone violation of constitutional rights was established

p. 12

Remaining prayers in the statement of claim (declarations of constructive dismissal, permanent injunctions, general damages)

The claimant served her full four-year contract and the contract-based complaints were settled by accord and compromise, leaving only the constitutional claim for trial, which failed

p. 11

Costs

The suit is dismissed with costs to the respondent

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.

The Court therefore rejects the claim that the respondent violated the claimant's constitutional rights.
p. 12rejection of constitutional claim
It would therefore not be just that on one hand the claimant and respondent compromised on her concerns and she served fully her contract while on the other hand sustain a claim for violation of constitutional rights based on selfsame facts.
p. 12effect of accord and compromise on constitutional claim
The principle of constitutional avoidance holds that where there is in existence a statute that provides for adjudication of certain kinds of disputes, resort ought to be made to the statute and not the constitution.
p. 12constitutional avoidance
This being the only question that the Court was left to determine, the suit, for the foregoing reasons is found without merit and is hereby dismissed with costs.
p. 12final orders

Issues in the judgment

#
minor

Judgment is internally inconsistent on the date of the statement of claim: it is described as dated 10th November 2023 at the outset but later as dated 12th May 2017

minor

Judgment inconsistent on which articles the claimant alleges were violated: paragraphs cite articles 28, 29, 30, 41 and 47 while the determination section refers to articles 28, 29, 30, 40 and 47 and the respondent's response refers to articles 2, 28, 29, 41 and 47

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mbuba v Aga Khan University (Cause 895 of 2017) [2025] KEELRC 1964 (KLR)", Case Analysis (2025). Statement of claim dated 12th May, 2017 (memorandum of claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1964/eng@2025-06-27

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