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ELRCStruck OutNot stated in judgment· [2025] KEELRC 2354 (KLR)

Abura v Coast Water Works Development Agency & 11 others (Petition E009 of 2025) [2025] KEELRC 2354 (KLR)

Employment and Labour Relations Court
8 August 2025
MMM. Mbarũ
2,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a constitutional petition over Coast Water hiring, ruling employment grievances must use statutory claims, not constitutional petitions.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (M. Mbarũ, J) decided a preliminary question: whether the petitioner's constitutional petition challenging the conversion of Coast Water Service Board employees' contract terms to permanent and pensionable terms, and the appointment of a Acting Chief Executive Officer and Deputy Directors, was a proper petition. The petitioner, a self-described human rights defender, relying on Trusted Society of Human Rights Alliance, Michael Osundwa Sakwa and Rule 10 of the Mutunga Rules, argued the petition disclosed sufficient grounds and that procedural technicalities should not bar a hearing on the merits; the 7th Interested Party (Public Service Commission) supported jurisdiction. Most respondents and interested parties countered, citing Anarita Karimi Njeru, Mumo Matemu and Communications Commission v Royal Media Services, that the petition lacked precision, pleaded no particulars of violation, and that constitutional avoidance required resort to a Memorandum of Claim under the Employment Act and Labour Relations Act. Some respondents also relied on the petitioner's earlier, unadopted Notice of Withdrawal. The court first confirmed the petition was alive since the withdrawal was never adopted as a court order. It then held the petition was not a proper petition: the petitioner merely recited constitutional provisions without particulars, and where legislation such as the Employment Act gives effect to constitutional rights, a litigant may not found a cause directly on the Constitution without challenging that legislation. The grievances could be ventilated in a Memorandum of Claim under Rule 10(3) of the ELRC Procedure Rules. The petition was struck out with no orders on costs.

Key legal issues

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01

Whether the petition met the precision threshold for constitutional petitions

Holding

It did not; the petitioner cited constitutional provisions without pleading particulars of violation

Reasoning

The petitioner merely recited constitutional provisions without explaining how the conversion of the Deputy Directors' positions violated his rights. The respondents argued, invoking Anarita Karimi Njeru and Mumo Matemu, that a petition must be drawn with precision so respondents can respond to particularised allegations. The court agreed that the petition lacked the required particulars.

p. 3
02

Whether the constitutional avoidance doctrine barred the petition

Holding

Yes; the employment grievances should be pursued in a Memorandum of Claim

Reasoning

Following Communications Commission of Kenya v Royal Media Services and Sumayya Athmani Hassan, the court held that where the Employment Act and Labour Relations Act give effect to Article 41 rights and provide adequate remedies, a litigant cannot bypass them by founding the cause directly on the Constitution absent a challenge to the legislation or an allegation of inadequacy. Rule 10(3) of the ELRC Procedure Rules allows constitutional enforcement within a statement of claim.

p. 4
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Effect of the Notice of Withdrawal of the Petition

Holding

The withdrawal was never adopted as an order of the court and was later withdrawn, so the petition remained alive for determination

Reasoning

The petitioner filed a Notice of Withdrawal but it was not adopted as a court order, and he subsequently filed a Notice to Withdraw the Notice. The court therefore treated the petition as live before striking it out on the merits of the threshold question.

p. 3

Legal principles established

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  • Where legislation has been enacted to give effect to a constitutional right, a litigant may not found a cause of action directly on the Constitution without first challenging the legislation
  • Unless a petition seeks the interpretation or application of the Constitution, the petitioner should file a claim (Memorandum of Claim) instead

Court orders

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  1. 1.The petition is struck out as not being a proper petition
  2. 2.No orders on costs
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution; Employment and Labour Relations Court Act; Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules

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, "Abura v Coast Water Works Development Agency & 11 others (Petition E009 of 2025) [2025] KEELRC 2354 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2354/eng@2025-08-08

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