Adera v Living Goods (Petition E111 of 2026) [2026] KEELRC 2226 (KLR) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E111 OF 2026** **BETTY ADHIAMBO ADERA PETITIONER** *VERSUS* **LIVING GOODS RESPONDENT** **RULING** On 16 June 2026, the court invited parties to make submissions on whether this is a proper petition. The petitioner submitted that the choice of filing a petition is to allow the court to address the current issue in dispute regarding several constitutional violations and the provisions of the employment statutes. The court has jurisdiction as their petition is premised on an employment relationship and violation of express provisions of the Bill of Rights. Under Article 162(2)(a) of the Constitution, the court has jurisdiction over an employment dispute and interprets the constitutional rights and freedoms. Article 162(3) of the Constitution allows Parliament to pass legislation conferring jurisdiction on the court. Hence, under section 12 of the Employment and Labour Relations Court Act, the employment relationships defined therein cover the petitioner’s case. In **Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others**, the Supreme Court of Kenya held that jurisdiction must flow from the Constitution or the law. In this case, the court has proper jurisdiction, as held in **United States International University (USIU) v Attorney General [2012] eKLR**. The petitioner submitted that this is a proper petition premised on the violation of various constitutional rights and freedoms. The petitioner pleads that she was dismissed from her employment because of her political beliefs and political association despite those activities being permitted under the respondent’s Code of Conduct. The petitioner thus makes a case of discriminatory treatment, violations of political rights, freedom of conscience and expression, and fair administrative action and fair labour practices. The claim transcends an ordinary contractual dispute, and it is up to the court to decide the temerity of such a violation based on the pleadings. In **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR,** the court held that constitutional litigation is properly invoked where a party demonstrates with precision the constitutional provisions violated, the nature of violations and the facts constituting the violations. The petition herein has satisfied this threshold. In **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR**, the court held that constitutional interpretation becomes necessary whenever a dispute raises genuine questions concerning the enforcement of constitutional rights. In this case, the court is invited to determine whether termination of employment because of an employee’s political opinion violates Articles 27, 32, 33, 38, 41, and 47 of the Constitution. In **Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR**, the court recognised that employment disputes may simultaneously involve constitutional questions and that the court is the appropriate forum for determining both. Hence, this is a proper petition and should be heard on merit. The respondent submitted that the petition is incompetent as framed. Although couched in constitutional language, it discloses an ordinary employment dispute, the disciplinary process and the remedies available. The issues set out in the petition are whether the court has jurisdiction to determine every employment dispute as a constitutional petition and whether the court has jurisdiction. Under Rule 7 of the Employment and Labour Relations Court (Procedure) Rules, a party may refer a dispute in court through a memorandum of claim. Rule 10 provides for the filing of a suit in a memorandum of claim, and one can raise constitutional rights violations therein. Thus, under the rule, the issues addressed by the petitioner herein can well be addressed in an ordinary suit through a memorandum of claim instead of invoking the constitutional petition route. The respondent submitted that on the doctrine of constitutional avoidance, where there exists legislation to give effect to constitutional rights and provides adequate avenues for redress, courts should avoid unnecessary constitutionalisation of disputes. In **Muli v Kenya Water Institute & 2 others** **[2023] KEELRC**, the court held that, while it has jurisdiction to hear constitutional questions arising from employment disputes, it ought not to proceed by way of a constitutional petition. The constitutional path can be avoided where an adequate parallel remedy is set out in statutes. In **Oluoch v Teachers Service Commission & another [2026] KEELRC**, the court held that rights under the Bill of Rights, particularly those relating to employment and labour relations under Article 41 of the Constitution, are now addressed in the Employment Act and the Labour Relations Act. Under Rule 10(3) of the Employment and Labour Relations Court (Procedure) Rules, a party is allowed to urge such rights through a memorandum of claim. This is not a proper petition and should be struck out with costs. **Determination** In the petition, the petitioner seeks a declaration that her employment was terminated unfairly, unlawfully, and in violation of constitutional rights. Hence, the petitioner is seeking an order of reinstatement. In the alternative, the petitioner is seeking payment of the contractual term and compensation, general damages and costs. Indeed, as submitted by the respondent, under Rule 10(3) of the Employment and Labour Relations Court (Procedure) Rules, one is allowed to file an employment dispute through a Memorandum of Claim and urge a case of constitutional rights violations: ***(3) Notwithstanding anything contained in this rule, a person may seek the enforcement of any constitutional right and freedom or any constitutional provision in a statement of claim or other suit filed before the Court.*** A party is allowed to lodge a claim and assert their constitutional rights. A claim arising from the employment relationship, premised on the violation of constitutional rights and alleged unfair labour practices, is addressed under the Employment Act or the Labour Relations Act. A claimant cannot rely directly on the Constitution without challenging the Employment Act or the Labour Relations Act, which had been enacted to give effect to the right of fair labour practices. A proper petition would therefore only arise where the applicable law was not sufficiently provided in the given case. **See Judicial Service Commission v Ndururi [2021] KECA 365 (KLR)** and **Jane Angila Obando v Teachers Service Commission & 2 others [2020] eKLR.** In[**Hassan v Simidi & another [2019] KECA 107 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/107/eng%402019-12-06), the court, in addressing the question of whether to urge an employment dispute through a constitutional petition or through an ordinary suit, held: *The Article 41 rights are enacted in the*[*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11)*and*[*Labour Relations Act*](https://new.kenyalaw.org/akn/ke/act/2007/14)*. The two Acts and the rules made thereunder provide adequate remedy and orderly enforcement mechanisms. The 1st respondent filed a petition directly relying on the provisions of*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*for enforcement of contractual rights governed by the*[*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11)*without seeking a declaration of invalidity of the provisions of the*[*Employment Act*](https://new.kenyalaw.org/akn/ke/act/2007/11)*or alleging that the remedies provided therein are inadequate. The petition did not raise any question of the interpretation or application of*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*.* The facts of the petition and the remedies sought can all cumulatively be addressed in an ordinary suit and through a Memorandum of Claim. Such will allow the parties to ventilate the issues, call evidence and be heard on the merits. The petition and the reliefs sought as addressed above do not present this as a matter ripe for a constitutional petition. The statutory frameworks and the Court Rules provide an appropriate avenue for initiating the dispute other than through a constitutional petition. **Accordingly, it is not a proper constitutional petition. It is struck out. The respondent is awarded costs of Ksh. 20,000 to be paid within 14 days; failure to do so shall render the full costs due per the scale.** **Delivered in open court this 30th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**