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ELRCStruck OutPetition No. E125 of 2026

Stella Atambo v The Hon. Chief Justice of the Republic of Kenya & Judicial Service Commission

Employment and Labour Relations Court of Kenya
8 October 2026
2,821 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a constitutional petition, confirming employment disputes must start as a Memorandum of Claim, not a petition.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (M. Mbarũ, J) disposed of a question the court itself raised on 30 September 2026: whether Petition No. E125 of 2026, filed by Stella Atambo against the Chief Justice and the Judicial Service Commission, was a proper petition. The petition challenged Notices to Show Cause issued under paragraph 25 of the Third Schedule to the Judicial Service Act, and was accompanied by an application to strike out the Replying Affidavit sworn by Muciimi Mbaka on behalf of the Chief Justice as an improper sub-delegation. The petitioner argued the petition was ripe and justiciable under Articles 22(1) and 258(1), that a threatened violation was imminent given the running 14-day response period, and that exhaustion was no bar as no alternative forum was named, relying on Murage, Lubengu, Kamande, Karume and Muthinja. The respondents, through counsel holding brief for both, submitted the dispute was a fact-specific administrative-fairness challenge that should have been brought as a Memorandum of Claim under Rule 10(3) of the ELRC Rules, relying on Sumayya Athmani Hassan, Ngure, Njue and Mutava. The court held that Article 41 rights are enacted in the Employment Act and Labour Relations Act, which provide adequate remedies; that where a statute prescribes a procedure it must be strictly followed (Karume, as applied in Almer Farm and Muroki Estates); and that proceeding by petition forfeited the evidence-bearing Memorandum of Response stage. Finding no question requiring constitutional interpretation, the court struck out the petition as unnecessary, with each party bearing its own costs.

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 a proper petition, or whether it should have been brought as an ordinary claim under the ELRC Rules
  2. 2.Whether the petition is ripe and justiciable
  3. 3.Whether exhaustion of alternative remedies bars the petition
  4. 4.Whether a constitutional petition is the proper vehicle for the reliefs sought

Key legal issues

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01

Whether the petition was a proper constitutional petition

Holding

It was not; the dispute is a fact-specific administrative-fairness challenge to a Notice to Show Cause that should have been brought as an ordinary claim

Reasoning

The court held that Article 41 rights are enacted in the Employment Act and Labour Relations Act, which provide adequate remedies and enforcement mechanisms. Rule 10(3) of the ELRC Rules permits constitutional rights to be urged in a Memorandum of Claim. Proceeding by petition loses a crucial stage - evidence attached to a Memorandum of Response - as illustrated by the petitioner's own application challenging the Replying Affidavit. No interpretation of the Constitution over rights not provided for under statute was required.

p. 9
02

Whether the Karume principle on prescribed procedures applies

Holding

Yes; where a statute prescribes a procedure for redress, it should be strictly followed

Reasoning

Relying on Speaker of the National Assembly v Karume as affirmed in Almer Farm and Muroki Estates, the court held that where the Constitution or an Act of Parliament prescribes a clear procedure for redress of a grievance, that procedure must be strictly followed, and quasi-judicial jurisdiction cannot be assumed for convenience contrary to Globe Developers.

p. 7
03

Whether ripeness and exhaustion barred the petition

Holding

The court did not determine these in the petitioner's favour; the petition failed on the improper-vehicle ground

Reasoning

The petitioner argued ripeness was satisfied because a threatened violation was imminent, citing Murage and Lubengu, and that exhaustion was no bar since no alternative forum was named, citing Karume and Muthinja. The court did not rule on these doctrines, instead disposing of the petition on the ground that it was not a proper petition.

p. 8

Legal principles established

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  • Where the Constitution or an Act of Parliament prescribes a clear procedure for redress of a grievance, that procedure should be strictly followed
  • Employment disputes should be brought by Memorandum of Claim, with constitutional violations argued under Rule 10(3) of the ELRC Rules, unless statutory remedies are shown to be insufficient

Court orders

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  1. 1.The petition is struck out as an unnecessary and improper petition
  2. 2.Each party to bear its own 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 162(2)(a), 165(3)(b), 22 and 23(3) of the Constitution and section 12 of the Employment and Labour Relations Court Act

Relief refused

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Continuation of the petition as a constitutional petition

The dispute is in substance a fact-specific administrative-fairness challenge to a Notice to Show Cause that should have been brought as a Memorandum of Claim under Rule 10(3) of the ELRC Rules

p. 9

Declaration that the petition is ripe, justiciable and properly pleaded

The court found the petition raised no question requiring interpretation or application of the Constitution

p. 8

Costs

Each party to bear its 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.

Accordingly, as the petition is unnecessary, it is struck out. Each party to bear its own costs.
p. 9Final orders - striking out
An ordinary dispute invoking the constitutional petition route. This is unnecessary. It is not a proper petition.
p. 9Improper vehicle
Therefore, where the Constitution or an Act of Parliament prescribes a clear procedure for redress of any particular grievance, that procedure should be strictly followed.
p. 7Karume principle
The petition did not raise any question of the interpretation or application of the Constitution.
p. 8Quoting Hassan v Simidi

Issues in the judgment

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minor

Caption garbled: 'TH JUDICIAL SERVICE COMMISSION' appears split across lines for the 2nd respondent

minor

Petition dated 2026 with judgment in October 2026; dates internally consistent but unusually recent

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, "Stella Atambo v The Hon. Chief Justice of the Republic of Kenya & Judicial Service Commission", Case Analysis (2026). Petition No. E125 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2778/eng@2026-10-08

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