Gichini v Kenya Electricity Generating Company (KENGEN) & 2 others (Petition E054 of 2026) [2026] KEELRC 1746 (KLR) (19 June 2026) (Ruling)

Gichini v Kenya Electricity Generating Company (KENGEN) & 2 others (Petition E054 of 2026) [2026] KEELRC 1746 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1746 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E054 of 2026 JW Keli, J June 19, 2026 Between Beatrice Wangari Gichini Petitioner and Kenya Electricity Generating Company (KENGEN) 1st Respondent Kenya National Examination Council (Knec 2nd Respondent and Rurii Secondary School Interested Party Ruling 1.The 1st respondent filed application by way of Notice of motion dated 23rd March 2026 brought under Section IA, IB,3A and 5 of the Civil Procedure Act, Cap 21 Laws of Kenya and all enabling provisions of law) for orders:a.That the Petition against the Applicant be struck out and/or wholly dismissed.b.That the costs of this Application and the Petition be granted to the Applicant. Grounds of the application 2.The Petition is in substance an ordinary employment dispute arising from a contractual employer-employee relationship and does not disclose any genuine constitutional issues. 3.The Petitioner has an adequate and efficacious statutory remedy under the Employment Act, 2007, which provides a complete framework for the adjudication of employment disputes. 4.The Petitioner has not demonstrated or particularised the specific constitutional rights alleged to have been infringed or shown why the issues if any cannot be addressed through existing statutory procedures under the Employment Act, 2007. 5.The Petition therefore improperly seeks to constitutionalize what is clearly contractual issue arising from an ordinary employer-employee dispute. 6.All the issues raised in the Petition can be addressed through the established statutory procedure of filing a Memorandum of Claim under the Employment Act, 2007. 7.In accordance with the doctrine of constitutional avoidance, this Honourable Court ought to decline to entertain the Petition where the issues raised can be effectively determined within the existing statutory framework. 8.It is therefore in the interests of justice that the Petition be struck out with costs as the same is an abuse of court process. 9.The application was supported by the affidavit of Maria Bor dated 23rd March 2026, where she annexed the disciplinary process documents and urged this was a matter under the Employment Act. Response 10.The application was opposed by the petitioner through her replying affidavit dated 31st March 2026 as follows- 11.From the onset, I am advised by my advocates on record whose advice I verily believe to be true that the Petition as filed is proper in law and that the instant Application is a malicious dilatory tactic intended to delay the expeditious determination of this matter, thereby prejudicing my pursuit of justice. The contents of paragraphs (1), (2) & (3) of the Supporting Affidavit are undisputed save to state that at all times during my employment with the 1st Respondent. I faithfully discharged my duties in accordance with the terms of engagement and all the applicable policies of the 1st Respondent/Applicant herein. 12.In response to the contents of paragraphs (4), (5), (6) & (7) of the Supporting Affidavit, I categorically deny any involvement with the alleged forged KCSE certificate forwarded to the 2nd Respondent for authentication particularly since:-a)I never presented any forged or irregular certificate to the 1t Respondent during the recruitment process;b)All copies of my academic and professional certificates, transcripts and other supporting documents were produced as certified copies of the original and therefore, the KCSE certificate copy forwarded to the 1st Respondent neither belongs to me, nor originated from me;c)There is no evidence whatsoever linking me to the alleged forged KCSE certificate thus rendering the 1st Respondent's allegation of gross misconduct baseless and my dismissal unfair, unlawful and/or unjustifiable ab initio. 13.The contents of paragraphs (8), (9), (10), (11) & (12) largely reiterate matters already pleaded in my Petition and I further state that, my dismissal cannot legally stand as it was founded on allegations not attributable to me in anyway. 14.Perhaps to address the main bone of contention in the Application. I am aware that the 1st Respondent seeks that the Petition be struck out purportedly for contradicting the doctrine of constitutional avoidance. 15.I am advised by my advocates on record whose advice I verily believe to be true that the doctrine of constitutional avoidance applies only where a dispute can be fully and effectively resolved without recourse to constitutional interpretation. Conversely, in the present Petition, it is evident that constitutional interpretation and enforcement are indispensable because:- The impugned actions or omissions of the 1t and 2nd Respondents directly implicate and violate my fundamental rights under Articles 28, 35, 41, 47 and 50 of the Constitution; The reliefs sought include judiciary review orders of certiorari, mandamus and declarations all of which are inherently constitutional in nature and cannot be obtained under claim pursued by dint of the Employment Act alone. At any rate, the rights under the Employment Act are expressions and/or derivatives of fundamental Constitutional rights, not alternatives to them. Therefore, given that this court is properly clothed with constitutional jurisdiction, my Petition remains legitimate even though part of the remedies sought may obtain under statute. 16.I firmly believe that the Petition is not a disguised employment claim, but a constitutional dispute that engages the Court's jurisdiction under Articles 22, 23, and 162(2) (a). Notably, the Petition implicates the 'mis-conduct' of Kenya National Examination Council, the 2nd Respondent, as a public entity in verifying my academic credentials. The 2nd Respondent was not a party to the employment Contract and thus, removing the Petition from the realm of a mere employee-employer dispute as alleged by the 1st Respondent herein. 17.Moreover, prior to filing the instant Petition, I instructed my advocates on record to issue a demand letter to the 2nd Respondent requesting to be furnish with copies of the alleged forged KCSE certificate forward to it for verification as well as the verification report which request was made in the strength of Article 35 of the Constitution that guarantee my right to information necessary for the exercise or protection of any right and fundamental freedom in the bill of right in the Constitution. (Annexed hereto and marked BWG-1' is a copy of the said Letter dated 10th February, 2026). 18.The 2nd Respondent acknowledged service of my said letter in their response letter dated 16th February, 2026 but refused, declined, neglected and/or failed to avail the information requested without any reasonable justification and in blatant disregard to my fundamental constitutional right to information which refusal materially limits my ability to vindicate my rights which infringement I now seek to remedy as prayed in the Petition. (Annexed hereto and marked BWG-2' is a copy of the said Letter dated 16th February, 2026 but served on 10tb March, 2026). 19.That in the totality of the circumstances, I am advise by my advocates on record whose advice I verily believe to be true that, the 1st Respondent's application is a non-starter, misconceived and unmerited in substance and thus, ought to be dismissed with costs. Decision 20.The application was canvassed by way of written submissions which the court perused. 21.The principle of striking out a suit is that the same is such that it cannot attract a defence. The court upheld the Court of Appeal decision in Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR) where the court summarised the jurisprudence on striking out pleadings and observed- ‘In Co-Operative Merchant Bank Ltd. vs George Fredrick Wekesa Civil Appeal No. 54 of 1999 the Court summarized the principles as follows;:“The power of the Court to strike out a pleading under Order 6 rule 13(1) (b) (c) and (d) is discretionary and an appellate Court will not interfere with the exercise of the power unless it is clear that there was either an error on principle or that the trial Judge was plainly wrong.....Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact....A Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment.”See Yaya Towers Limited vs Trade Bank Limited (In Liquidation) CivilAppeal No. 35 of 2000 and DT Dobie & Company (Kenya) Ltd vs Muchina(1982) KLR 1.’’ 22.Further in DT Dobie & Co (K) Ltd v Muchina [1982] KLR 1 the Court of Appeal held that a suit should not be summarily dismissed unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action and is beyond redemption by an amendment. The court must act very cautiously and carefully. 23.The employment of the petitioner was terminated, thus a cause of action arose against the decision of the employer. Several other parties are involved in the petition, not just the employer. As to whether it is a case of constitutional avoidance that can only be established on the merits of the case. The court is guided by section 20 of the Employment and Labour Relations Court Act not to determine suits on technicalities. I decline to strike out the petition at this stage. The application dated 23rd March 2026 is dismissed with costs to the petitioner in the cause. Mention on 8th July 2026 for directions on the petition. 24.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 19TH JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoPetitioner - Mutua1st respondent/applicant -Muuo