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ELRCDismissedNot stated in judgment (Employment and Labour Relations Court Petition)

Chege v Kenya Railways Corporation (Employment and Labour Relations Petition E071 of 2025) [2025] KEELRC 2668 (KLR)

Employment and Labour Relations Court
2 October 2025
HWHELLEN WASILWA
1,783 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to strike out an employee's constitutional petition, ruling that disputes needing factual investigation must go to a full hearing.

What this practically means

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Executive summary

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The Respondent/Applicant filed a Notice of Motion dated 2nd May 2025 seeking the striking out and/or dismissal of a constitutional petition filed by its former Corporation Secretary and Head of Legal Department, who alleged violations of Articles 41, 47 and 50(1) of the Constitution arising from her employment. The Applicant argued that the petition was a disguised ordinary employment claim offending the doctrine of constitutional avoidance, that statutory remedies existed under the Employment Act (Sections 41, 43 and 49), that the petition failed the Anarita Karimi Njeru precision threshold, and that no exceptional circumstances justified direct constitutional invocation, relying on Communications Commission of Kenya v Royal Media Services and PN v Intercity Secure Homes. The Petitioner opposed, contending that Articles 41, 47 and 50(1) were pleaded with particulars, that striking out is a draconian remedy inappropriate where triable issues exist, that the deponent to the supporting affidavit lacked authority, and that a litigant may choose the constitutional vehicle, citing C N M v W M G and Fredericks v MEC for Education. Judge Hellen Wasilwa held that the alleged breach arose from a contract of employment and its determination would require the court to delve into factual issues, which is beyond the scope of a striking-out application as framed in the Mukisa Biscuit decision. The application was found unmerited and dismissed, with the parties directed to proceed with the main petition and costs reserved to the 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 should be struck out and/or wholly dismissed for failing to raise a genuine constitutional question and for offending the doctrine of constitutional avoidance
  2. 2.Whether the Petition failed the Anarita Karimi Njeru threshold of pleading with precision the constitutional provisions infringed
  3. 3.Whether the existence of statutory remedies under the Employment Act barred the constitutional petition

Key legal issues

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01

Whether a constitutional petition founded on an employment dispute can be struck out on the doctrine of constitutional avoidance

Holding

No - the application was dismissed because determination of the alleged breach requires resolution of factual issues beyond the scope of a striking-out application

Reasoning

The Applicant argued the petition was a disguised ordinary employment claim offending constitutional avoidance and failing the Anarita Karimi Njeru precision threshold. The Petitioner countered that Articles 41, 47 and 50(1) were cited with particulars, that striking out is draconian, and that a litigant may choose the constitutional vehicle. The court held the breach alleged arises from a contract of employment and would require factual enquiry, which a striking-out application cannot accommodate, and dismissed the motion.

p. 5

Legal principles established

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  • A striking-out application cannot be granted where its determination would require the court to delve into contested factual issues

Court orders

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  1. 1.The Notice of Motion dated 2nd May 2025 seeking striking out of the Petition is dismissed
  2. 2.Parties directed 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
Employment and Labour Relations Court jurisdiction over constitutional petitions concerning labour relations (Articles 41, 47 and 50 of the Constitution invoked by the Petitioner)

Relief refused

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Striking out and/or wholesale dismissal of the Petition

The court could not determine the application without delving into factual issues, which is impermissible at the striking-out stage per the Mukisa Biscuit decision

p. 5

Costs of the application to the Applicant

Costs were instead ordered to abide the outcome of the petition

p. 5

Costs

Costs in the petition (no costs awarded on the application)

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.

I have examined all the averments and submissions of the parties herein. The petitioner has averred breach of her constitutional right arising out of a contract of employment.
p. 4Nature of the petitioner's claim
To determine this breach, this court will have to delve into factual issues which I am unable to consider in this application by virtue of the scope in the celebrated Mukisa Biscuit case.
p. 5Limits of striking-out applications - Mukisa Biscuit
In the circumstances, I find the application before me is not merited. I dismiss it accordingly and direct the parties to proceed with the main petition. Costs in the petition.
p. 5Disposition and costs

Issues in the judgment

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minor

Case number and neutral citation are not stated anywhere in the judgment text

minor

The judgment refers to the Petitioner and Respondent without naming the parties

minor

Ground of opposition sentence is incomplete: 'completely oblivious of the'

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, "Chege v Kenya Railways Corporation (Employment and Labour Relations Petition E071 of 2025) [2025] KEELRC 2668 (KLR)", Case Analysis (2025). Not stated in judgment (Employment and Labour Relations Court Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2668/eng@2025-10-02

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