Harry Opiyo Ochieng v iHub Limited

RULING 1. The petitioner stated that he served as an employee of the respondent from 21st October 2024 to 13th October 2025, when his 3-year contract of service was terminated. The petitioner alleged unfair termination in the instant petition dated 14th April 2026 and sought the following reliefa) A declaration that the termination of his Fixed Term Employment Agreement was unfair and unlawful. b) A declaration that the Respondent's actions were in violation of the Petitioner's constitutional rights and fundamental freedoms as guaranteed by Articles 27(1), 28, 31(c), al(I) and 47 of the Constitution of Kenya 2010 c) An order for compensation and an award of damages for violation of the Petitioner's constitutional rights and fundamental freedoms d) KES 1,223,476.441- being the equivalent of 12 months' solory os remedies for unfair and unlawful termination in accordance with Section 49 of the Employment Act. e) KES I,083,521.471- being unpaid housing allowance of 15% of the annual gross salary, pursuant to Section 31 of the Employment Act' f) Costs of this Petition. g) Interest on Orders (c), (d), (e) and (f) at Court rates. h) Any other or further Orders, Writs or directions this Honourable Court considers appropriate and just to grant for purposes of the enforcement of the fundamental rights and freedoms of the Petitioner. RULING IN NAIROBI ELRC PETITION NO. E115 OF 2026 Page 2|9

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2. The petitioner filed an affidavit of even date in support of the petition and annexed documents marked as annexures HOO-1 to HOO-9. 3. The respondent entered an appearance through the law firm of Munyaka Advocates LLP and filed grounds of opposition dated 7th May 2028, contending that the petition violated the doctrine of constitutional avoidance. The respondent further filed a Notice of Preliminary Objection raising points of law and seeking to have the petition struck out on the following grounds- ‘The Petition offends the doctrine of constitutional avoidance as the dispute herein arises from an employment relationship governed by the Employment Act, 2007 and the Labour Relations Act, 2007, which statutes provide adequate remedies and enforcement mechanisms for the grievances raised, hence the Petitioner cannot find a cause of action directly under the Constitution.’ Decision 4. The court directed that the preliminary objection be heard first by way of written submissions. Both parties filed Whether the notice of preliminary objection was proper and merited The law RULING IN NAIROBI ELRC PETITION NO. E115 OF 2026 Page 3|9

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5. Article 41 of the Constitution provides for fair labour rights ‘41. Labour relations (1)Every person has the right to fair labour practices. (2)Every worker has the right— (a)to fair remuneration; (b)to reasonable working conditions….’ 6. Section 41 of the Employment Act provides for procedural fairness in termination of employment – ‘41. Notification and hearing before termination on grounds of misconduct (1)Subject to section 42(1), an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation. (2)Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1) make.’ RULING IN NAIROBI ELRC PETITION NO. E115 OF 2026 Page 4|9

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7. Section 45 of the Employment Act provides for a comprehensive legal framework on the threshold for fair termination – ‘(1)No employer shall terminate the employment of an employee unfairly.(2)A termination of employment by an employer is unfair if the employer fails to prove— (a)that the reason for the termination is valid; (b)that the reason for the termination is a fair reason— (i)related to the employees conduct, capacity or compatibility; or (ii)based on the operational requirements of the employer; and (c)that the employment was terminated in accordance with fair procedure. (3)An employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unfairly terminated. (4)A termination of employment shall be unfair for the purposes of this Part where—(a)the termination is for one of the reasons specified in section 46; or (b)it is found out that in all the circumstances of the case, the employer did not act in accordance with justice and equity in terminating the employment of the employee. (5)In deciding whether it was just and equitable for an employer to terminate the employment of an employee, for the purposes of this section, a labour Officer, or the Employment and Labour Relations Court shall consider—….’ Whether the notice of preliminary objection is merited. RULING IN NAIROBI ELRC PETITION NO. E115 OF 2026 Page 5|9

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8. The law on preliminary objections was well settled in Mukisu Biscuit Manufacturing Co. Ltd v West End Distributors Ltd 1196 l EA 696, where Sir Charles Newbold P stated: 'A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.' 9. I find it is not in dispute that before the court was a cause of action related to termination of the employment contract. The petitioner justified the filing of a constitutional petition instead of a claim under the Employment Act and submitted as follows: ‘The Petition was filed as a constitutional petition rather than an ordinary Statement of Claim because the Petitioner, having worked for 11 months and 22 days, had not completed the 13month continuous service threshold under Section 45(3) of the Employment Act, which provision states:"An employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unfairly terminated." The Petitioner, having not met the 13-month threshold at the time of termination, was barred by the application of Section 45(3) from bringing an ordinary unfair termination claim under the Employment Act. The only available recourse was for the Petitioner to invoke the Court's constitutional jurisdiction, relying on Rule 10(3) of the Employment and Labour Relations Court Procedure Rules 2024.’ RULING IN NAIROBI ELRC PETITION NO. E115 OF 2026 Page 6|9

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10. The court agreed with the respondent that this was a claim under the Employment Act and did not disclose any cause outside that of fairness in the termination. The issue of fairness on termination of the employment is comprehensively provided together with remedies under the Employment Act. There is no need to invoke the Constitution. I further found that the petitioner was mistaken on section 45(3) of the Employment Act, which states- ‘An employee who has been continuously employed by his employer for a period not less than thirteen months immediately before the date of termination shall have the right to complain that he has been unfairly terminated.’ 11. The said section 45(3) of the Employment Act was declared unconstitutional by the High Court (Justice Lenaola as he then was) in Momanyi v Attorney General & another [2012] KEHC 5446 (KLR) where the Judge stated- ‘I wholly agree and as I have shown above, section 45(3) is unreasonable and has the opposite of what the object of the Employment Act was intended to be. In his ruling, Rika J (above) laboured to show that the Applicant would otherwise have been heard on his claim against the Second Respondent but for the barrier created by section 45(3). The learned judge then severed the Petitioner’s claims and struck out what he thought fell under section 45 but retained for hearing what fell outside it. Clearly, the Law was oppressive but the judge’s hands were tied. 27.I have said enough to show that the Constitution must be upheld and section 45(3) declared invalid to the extent of its inconsistency.’ RULING IN NAIROBI ELRC PETITION NO. E115 OF 2026 Page 7|9

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12. The holding on the unconstitutionality of section 45(3) of the Employment Act was upheld by the Court of Appeal in Samuel G. Momanyi v SDV Transami Kenya Ltd [2017] KECA 141 (KLR). 13. I find the law is settled. Any employee can file a claim in court alleging unfair termination or breach of contract. The court upholds the notice of preliminary objection by the respondent to effect that the instant petition offends the doctrine of constitutional avoidance as defined in S vs. Mhlungu 1995 (3) SA 867 (CC) 59 where the court laid out constitutional avoidance as a general principle in the following terms: “I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”(cited with approval by the Court of Appeal in Wajir Wasco Limited alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR). 14. The court is not to decide cases on technicalities, as stated in section 20 of the Employment and Labour Relations Court Act. Consequently, having held that this was an ordinary claim and having upheld the respondent's Notice of Preliminary Objection dated 7th May 2026, I order that the petition is deemed to be a claim and is to be decided as such. The parties are to file witness statements. The respondent is at liberty to file a replying affidavit or witness statement in response to the petition. Disposition RULING IN NAIROBI ELRC PETITION NO. E115 OF 2026 Page 8|9

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15. The Notice of Preliminary Objection by the respondent, dated 7th May 2026, is upheld with costs in the cause. 16. The petition is deemed to be a claim. The response to be filed and witness statements by both parties. 17. Mention on 28th October, 2026 for pre-trial directions. 18. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 25 TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Applicant: Mosagwe h/b Meso Respondent- Ouko Cliffton RULING IN NAIROBI ELRC PETITION NO. E115 OF 2026 Page 9|9

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