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ELRCStruck OutNot stated in the judgment

Orioki v Del Monte Kenya Limited (Petition E021 of 2025) [2025] KEELRC 2052 (KLR)

Employment and Labour Relations Court
10 July 2025
3,296 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a unfair-termination petition, ruling that ordinary employment disputes belong in a statement of claim, not a constitutional petition.

What this practically means

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Executive summary

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The petitioner, engaged as a Human Rights Manager by the respondent under an employment agreement dated 30.05.2024 effective 15.07.2024, was terminated by letter dated 08.01.2025 on grounds that his overall performance had not met expectations. He filed a constitutional petition seeking declarations that the respondent violated his rights under Articles 10, 24, 25, 27, 41, 47 and 50 of the Constitution and sections 41, 43 and 45 of the Employment Act, 2007, together with compensation for unfair termination, damages for psychological anguish, exemplary damages and costs. He alleged lack of performance evaluation, an inadequate show cause process, a disciplinary hearing unrelated to the termination grounds, and breach of the respondent's Disciplinary Procedure Manual. The respondent, through the replying affidavit of Gedion Kimutai, urged that the petition was trapped by the doctrine of constitutional avoidance since the dispute was essentially an unfair termination claim amenable to an ordinary action, that the petitioner was insubordinate, and that his probation was simply not confirmed with terminal dues of Kshs. 350,650.05 paid. The Court, per Byram Ongaya, Principal Judge, framed the issue as whether the petition was trapped by constitutional avoidance. It found the primary dispute was unfair termination under sections 41, 43 and 45 of the Employment Act with remedies under section 49, involving heavily contested factual issues best traversed by pleadings and testimony in an ordinary action. Relying on rule 9(3) of the ELRC (Procedure) Rules, the Court held that secondary constitutional claims should be urged in a statement of claim. The petition was struck out with no orders on costs, with liberty implied to institute a proper claim by statement of claim.

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 is trapped by the doctrine of constitutional avoidance
  2. 2.Whether the petitioner's claims of unfair termination and constitutional violations should be pursued by way of a constitutional petition or an ordinary action (statement of claim)

Key legal issues

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01

Doctrine of constitutional avoidance

Holding

The petition was struck out because the primary dispute was unfair termination under sections 41, 43 and 45 of the Employment Act with remedies under section 49, which should be litigated by ordinary action; constitutional claims could be raised within that suit under rule 9(3)

Reasoning

The Court examined the pleadings and found the grievance centred on contested factual issues (diligence, performance reviews, fairness of the disciplinary process) arising from the employment contract. Such facts are best traversed through pleadings and testimony in an ordinary action rather than affidavit-based petition proceedings. Rule 9(3) permits constitutional claims in a statement of claim, so the petitioner suffers no loss of remedy.

p. 7

Legal principles established

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  • Where the primary claims are statutory and amenable to an ordinary statement of claim, secondary constitutional claims should be urged in the statement of claim rather than a constitutional petition
  • A petition based solely on affidavit evidence is unsuited to disputes turning on heavily contested facts best resolved in a full hearing in an ordinary action

Court orders

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  1. 1.The petition is struck out
  2. 2.No orders on costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 10, 19(2), 20, 21(1), 23(3), 41, 47, 50(1), 258(1) and 259(1) of the Constitution; Employment and Labour Relations Court (Procedure) Rules, rule 9(3)

Relief refused

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All reliefs sought in the petition (declarations of rights violations, unfair termination, compensation, damages, costs)

The petition was struck out as trapped by the doctrine of constitutional avoidance; the dispute was primarily a statutory unfair termination claim that should have been brought by ordinary action

p. 7

Costs of the petition

Because the dispute was live and the petitioner may institute a proper claim

p. 7

Costs

No orders on costs - each party to bear their own costs

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.

In conclusion, the petition is hereby struck out with no orders on costs.
p. 7Final orders
In view of the findings the Court returns that the petition is liable to striking out as trapped by the constitutional avoidance principle.
p. 7Constitutional avoidance
It therefore appears to the Court that where the primary claims are statutory and amenable to an ordinary statement of claim like in the instant case, the secondary constitutional claims should be urged in the statement of claim and not a constitutional petition.
p. 7Forum and mode of pleading constitutional claims

Issues in the judgment

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minor

The judgment refers to a disciplinary hearing notice dated 16.01.2025 scheduled for 17.01.2024, while other passages place the hearing on 17.12.2024 and a rescheduled hearing on 19.12.2024 - internally inconsistent dates

minor

Petitioner pleaded violation of Articles 10, 24, 27, 41, 47 and 50 in the reliefs but particularised Articles 10, 25, 41, 47(1) & (2) and 50(1) - inconsistent enumeration

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, "Orioki v Del Monte Kenya Limited (Petition E021 of 2025) [2025] KEELRC 2052 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2052/eng@2025-07-10

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