https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2042

Mikunyua v Kenya Horticultural Exporters (1977) Limited (Petition E005 of 2026) [2026] KEELRC 2042 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2042 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Petition E005 of 2026 SC Rutto, J July 16, 2026 IN THE MATTER OF ARTICLES 2,10,19,20,22,23,27,28,41,43 AND 47 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION AND VIOLATION OF THE PETITIONER’S FUNDAMENTAL RIGHTS AND FREEDOMS UNDER THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTIONS 5,9,10,35,41,43,44,45,47,49,51 AND 74 OF THE EMPLOYMENT ACT, 2007 AND IN THE MATTER OF THE WORK INJURY BENEFITS ACT, 2007 AND THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT,2011 Between Joel Miaka Mikunyua Petitioner and Kenya Horticultural Exporters (1977) Limited Respondent Judgment 1.The Petitioner commenced these proceedings by way of a Petition dated 19th January 2026, alleging that the Respondent failed to compensate him for injuries sustained in the course of his employment and subsequently terminated his employment in an unlawful manner. The Petition is supported by the Affidavit sworn by the Petitioner, Joel Miaka Mikunyua, on 19th January 2026. 2.According to the Petitioner, he was employed by the Respondent as a farm worker at its Ontulili River Farm. 3.The Petitioner states that he diligently served the Respondent until 16th August 2023, when he sustained a fracture to his left index finger while carrying out his assigned duties. He avers that the accident was immediately reported to his supervisor, following which he received initial treatment from the Respondent's medical team before being referred to Nanyuki Referral Hospital for further medical care. 4.The Petitioner contends that the Respondent failed, refused and/or neglected to report the accident to the Director of Occupational Safety and Health Services (the Director) as required under the law, or to facilitate the processing of his claim for compensation. 5.The Petitioner further avers that, while he was still recuperating from his injuries, the Respondent unlawfully and unfairly terminated his employment without affording him a hearing or providing any valid reason for the termination. 6.It is the Petitioner's case that the Respondent's actions occasioned him emotional distress, financial loss and indignity, thereby violating his constitutional rights to fair labour practices, fair administrative action and human dignity. Accordingly, he seeks the following reliefs against the Respondent:i.A declaration that the Respondent’s actions violated the Petitioner’s constitutional rights under Articles 28,41,43 and 47 of the Constitution.ii.A declaration that the termination of the Petitioner’s employment was unlawful, unfair and unconstitutional.iii.An order directing the Respondent to process and pay work injury compensation in full under the Work Injury Benefits Act, 2007.iv.An award of 12 months’ salary as compensation for unfair termination under section 49 (1) (c) of the Employment Act.v.An award of one month’s salary in lieu of notice.vi.General damages for breach of constitutional rights and dignity.vii.Interest on all monetary awards at court rates.viii.Costs of the Petitioner from the date of filing until payment in full.ix.Any other relief the court deems just, equitable and expedient in the circumstances. 7.The Respondent opposed the Petition through a Replying Affidavit sworn on 22nd June 2026 by Samuel Ichoho Chege, its Administration Manager. 8.Mr. Chege deposes that the Petitioner was not a permanent employee but was engaged on seasonal contracts during the year 2023. He disputes the Petitioner's assertion that the employment relationship commenced in 2012, stating instead that the Petitioner served under fixed-term seasonal contracts running from 2nd August 2023 to 30th October 2023, 31st October 2023 to 30th January 2024, 31st January 2024 to 30th April 2024, and 1st May 2024 to 30th July 2024. 9.Mr. Chege confirms that the Petitioner sustained a work-related injury on 16th August 2023 and avers that he was immediately taken to the hospital where he received the necessary medical attention and treatment. 10.Mr. Chege further states that the accident was reported to the Director on 16th August 2023, within the timelines prescribed under the Work Injury Benefits Act, and that the Respondent's insurer was notified the following day, on 17th August 2023. 11.According to Mr. Chege, the Petitioner continued working until sometime in June 2024, when the Respondent temporarily ceased engaging seasonal employees due to increased operational costs. He avers that the Petitioner was duly informed of this development and acknowledged the same. 12.He further deposes that upon the cessation of the seasonal engagement, the Petitioner was paid all his terminal dues. 13.Mr. Chege also states that, following the Director's assessment, compensation was computed at Kshs. 48,437.60 through a demand dated 5th February 2024. He adds that Cheque No. 24370 dated 24th March 2026 was drawn in favour of the Petitioner and forwarded to the Director's office in Laikipia for collection and execution of the requisite discharge documents. 14.He further avers that the Respondent met the Petitioner's medical expenses, facilitated his treatment whenever required, and allowed him to proceed on sick leave in accordance with medical advice. 15.Mr. Chege maintains that the Petitioner's employment was not terminated because of the workplace injury but came to an end following the temporary suspension of seasonal engagements. He reiterates that the Petitioner was notified of the cessation, paid all his dues, treated with dignity throughout his employment, and was offered several contracts even after sustaining the injury until June 2024. 16.In response to the Respondent’s Replying Affidavit, the Petitioner filed a Supplementary Affidavit sworn on 6th July 2026. The Petitioner disputes the Respondent's characterization of his employment as an intermittent seasonal engagement, maintaining that he served continuously for approximately ten (10) years under successive fixed-term contracts without any break in service. 17.The Petitioner further avers that upon the expiry of each contract, he was routinely issued with another while continuing to perform the same duties under the same supervisors. In his view, the repeated renewals gave rise to a legitimate expectation that his employment would continue unless lawfully terminated. 18.He further contends that following his injury, he was treated differently from other employees and, despite being willing to resume work upon recovery, he was never recalled to duty. 19.The Petitioner further denies ever receiving the compensation assessed by the Director. He avers that he was never served with the Director's assessment under the Work Injury Benefits Act, nor informed of his statutory right to object to, seek a review of, or appeal the assessment. 20.According to the Petitioner, he only became aware of the Director's assessment upon being served with the Respondent's Replying Affidavit in these proceedings. He asserts that, had he been notified of the assessment, he would have exercised his statutory right to challenge it on the basis that the award was grossly inadequate in light of the permanent effects of his injuries. 21.The Petitioner further points out that the Respondent has not explained why the cheque exhibited is for Kshs. 9,130.00, whereas the Director assessed compensation at Kshs. 48,437.60. He maintains that, in any event, the cheque does not constitute proof of payment since it was never delivered to him. 22.The Petitioner further disputes the Respondent's reliance on the document relating to the temporary cessation of employment, contending that it was prepared unilaterally by the Respondent and that he neither negotiated nor was he informed that signing the documents would amount to relinquishing his constitutional and statutory rights. 23.The Petitioner further contends that no private agreement can lawfully waive or extinguish rights guaranteed under the Constitution, the Employment Act or the Work Injury Benefits Act. 24.It is the Petitioner’s position that what was described as a temporary cessation of employment effectively became permanent, as the Respondent has not produced any evidence demonstrating that he was ever recalled to work or that he declined to resume duty. 25.The Petitioner maintains that he was never issued with a Notice to Show Cause, invited to a disciplinary hearing, informed of any allegations against him, or afforded an opportunity to defend himself. He therefore contends that the Respondent failed to comply with the mandatory requirements of Sections 41, 43 and 45 of the Employment Act. 26.The Petitioner further avers that the Respondent violated his constitutional rights under Articles 28, 41, 43 and 47 of the Constitution by terminating his employment shortly after he sustained a serious workplace injury, at a time when he required his employer's support. Submissions 27.The Petition was canvassed through written submissions. In support of the Petition, the Petitioner submitted that his termination from employment after a workplace injury was not only malicious but also discriminatory and retaliatory. To support this position, the Petitioner placed reliance on the case of Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] KEELRC 905 (KLR). 28.In the same vein, the Petitioner submitted that the Respondent terminated his employment without due process and abandoned him after sustaining a workplace injury. 29.The Petitioner further submits that the Respondent's reliance on the alleged temporary cessation of seasonal employment does not advance its case. According to the Petitioner, the Respondent has not produced any evidence to demonstrate that its business had genuinely declined, such as production reports, export records, financial statements, or any redundancy programme. 30.It was the Petitioner’s further contention that if indeed the cessation of employment was temporary, nothing prevented the Respondent from recalling him to work. In the same breath, the Petitioner contended that the cessation was never temporary but permanent. To this end, the Petitioner urged the Court to treat it as a termination of employment. 31.The Petitioner further submitted that the Respondent has failed to prove that the Director’s assessment was communicated to him. In this regard, the Petitioner contends that there is no evidence demonstrating that the Director's assessment was ever served upon him, that he acknowledged receipt thereof, that he was informed of the amount assessed, or that he was advised of his statutory right to object to the assessment. 32.It was the Petitioner’s further submission that the Respondent has not demonstrated prompt payment and compliance with the Director’s directions. 33.The Petitioner further submitted that the Respondent has not exhibited a Notice to Show Cause, disciplinary proceedings, hearing minutes, termination letter or valid reasons for discontinuing his employment. To buttress this position, the Petitioner placed reliance on the case of Postal Corporation of Kenya v Andrew K. Tanui (2019) eKLR. 34.On its part, the Respondent submitted that it fulfilled its legal mandate under the requirements of the Work Injury Benefits Act. To this end, the Respondent further contended that having fulfilled its obligation, the Petitioner was expected to move this Court in a different manner to enforce or challenge the Director’s award. On this score, the Respondent placed reliance on the case of Charles v Cheto [2025] KECA 784 (KLR) and Amir Swaleh Omar v Mackenzie Maritime [e.a] Limited [2022] eKLR. 35.Still on this issue, the Respondent submitted that the determination of liability and assessment of damages payable in work injury claims is strictly within the statutory domain of the Director. In this regard, the Respondent posited that the Court can either enforce the award or hear an appeal against the Director’s award but cannot usurp the statutory power of dictator to issue awards under the Work Injury Benefits Act. 36.The Respondent further posited that issuing the Petitioner with contracts post-injury reinforces its claim that at all times, it acted in good faith and on the Petitioner’s ability to conduct his duties. 37.It was further submitted by the Respondent that the decision to part ways with the Petitioner was not made out of unlawfulness but was on a mutual basis determined by the scaling down of business operations and reduction of labour force, to which the Petitioner acknowledged the same. Analysis and Determination 38.Having considered the Petition, the Respondent's Replying Affidavit, the Petitioner's Supplementary Affidavit, and the parties' respective submissions, the Court finds that the following twin issues arise for determination:a.Whether the Respondent violated the Petitioner's constitutional rights; andb.Whether the Petitioner is entitled to the reliefs sought. Constitutional violation? 39.The Petitioner alleges that the Respondent violated his constitutional rights and, in particular, invokes Articles 10, 19, 20, 28, 41, 43 and 47 of the Constitution. 40.It is common ground that the Petitioner was employed by the Respondent and that, in the course of his employment, he sustained a work-related injury on 16th August 2023. 41.The Petitioner's case is that following the work injury, he was treated differently from other employees and, despite having recovered and expressing his willingness to continue working, he was never recalled to resume duty. 42.The Petitioner further contends that what the Respondent described as a temporary cessation of employment effectively became permanent, as no evidence has been produced to show that he was ever recalled to work or that he declined to resume his duties. 43.The Respondent, on its part, maintains that the Petitioner was engaged on successive seasonal contracts until June 2024, when seasonal engagements were temporarily suspended owing to increased operational costs. According to the Respondent, the Petitioner was duly informed of this development and acknowledged the arrangement. 44.In support of their respective positions, both parties produced copies of the Petitioner's seasonal employment contracts, which show that he served under successive three-month fixed-term contracts from 25th November 2022 until 20th June 2024. 45.The Respondent also produced an agreement dated 20th June 2024, executed by both the Petitioner and a representative of the Respondent’s welfare committee, titled "Temporary Cessation of Seasonal Employment Contract and Payment of Final Dues." The agreement states that, owing to the prevailing situation at the farm, including a reduction in the workforce resulting from the scaling down of business operations, the parties mutually agreed to temporarily end their seasonal employment contractual relationship. 46.The agreement further provided that the Petitioner would be paid his wages for all days worked up to and including 20th June 2024, together with pay in lieu of notice and payment for accrued but untaken leave days. 47.The Petitioner nevertheless maintains that no private agreement can lawfully waive or extinguish the constitutional and statutory rights conferred upon him under the Constitution and the Employment Act. 48.It is noteworthy that the preamble to the seasonal employment contracts provides as follows: “As our operations are wholly dependent on seasons and customer orders, your employment with this company is entirely seasonal. Accordingly, in the event that the company’s operational needs do not guarantee a large number of employees at any one time, you may be laid off and be given appropriate notice as per this contract or be paid in lieu of notice. No wages shall be payable during the days/period of lay-off. But when the season improves sufficiently to allow for further engagement with you, you will, at the sole discretion of the management, be re-employed by the company on a new contract. In a scenario where a contract has expired, the company cannot guarantee re-engagement.” 49.From the foregoing, it is evident that the Petitioner's continued engagement was, from the outset, expressly made contingent upon seasonal demands and customer orders. In those circumstances, he cannot assert that he had a legitimate expectation of continuous or indefinite employment. 50.What’s more, the Petitioner executed the agreement dated 20th June 2024, which brought the employment relationship to an end by mutual consent. Such an arrangement is a recognized and lawful mode of separation in employment. 51.Had the Petitioner been dissatisfied with the terms of the agreement, it was reasonably expected that he would either have declined to execute it or taken steps to challenge its validity. No evidence has been placed before the Court to demonstrate that he did either. Indeed, even in the present proceedings, the Petitioner has not sought to void the said agreement on the ground of any vitiating factor. 52.In the premises, the Court is not persuaded that the temporary cessation of the Petitioner's seasonal engagement amounted to a violation of his constitutional rights. 53.The Petitioner has further contended that the cessation of his employment occurred shortly after he sustained the workplace injury. 54.The record, however, reveals that after the Petitioner sustained the injury on 16th August 2023, his employment was subsequently renewed on three (3) separate occasions, namely from 31st October 2023 to 30th January 2024, from 31st January 2024 to 30th April 2024, and from 1st May 2024 to 30th July 2024. This sequence of events discounts the Petitioner’s assertion that his employment came to an end because of the injuries he sustained in the course of his employment. 55.Accordingly, the Court is unable to conclude that the Petitioner's constitutional rights were infringed or that the cessation of his employment was occasioned by his workplace injury. 56.The Petitioner further contends that he was never served with the Director's assessment under the Work Injury Benefits Act and was consequently denied the opportunity to object to, seek a review of, or appeal against the assessment. 57.The Respondent disputes this assertion and maintains that the accident was duly reported to the Director on 16th August 2023 within the timelines prescribed under the Work Injury Benefits Act. 58.It further states that the Director assessed the Petitioner's compensation at Kshs. 48,437.60 and that, following the assessment, it prepared a cheque dated 24th March 2026 in the Petitioner's favour and forwarded it to the Director's office in Laikipia for collection and execution of the requisite discharge documents. 59.In support of its position, the Respondent produced DOSH Form 1(Notification by employer of an occupational accident/disease), which confirms that the workplace injury was reported to the Director on 16th August 2023. 60.Notably, Part II of the form indicates that the Petitioner's permanent incapacity was assessed at 1% by Dr. Omenda of Nanyuki Teaching and Referral Hospital. This is consistent with the Petitioner's own account that, immediately after sustaining the injury, he received initial treatment from the Respondent's medical team before being referred to Nanyuki Teaching and Referral Hospital for further medical care. 61.The Respondent further produced DOSH/WIBA Form 4 (Demand for payment of Work Injury Benefits) dated 5th February 2024, issued by the County Occupational Safety and Health Officer, Laikipia, directing the Respondent to pay the sum of Kshs. 48,437.60 being the compensation awarded to the Petitioner for the work-related injury. 62.The documentary evidence on record, therefore, dispels the Petitioner's allegation that the Respondent failed to report the workplace injury to the Director. 63.With regard to the alleged failure to notify the Petitioner of the Director's assessment, it is notable that the responsibility for communicating the assessment and informing the affected parties of their statutory rights rests with the office of the Director, which is the body mandated under the Work Injury Benefits Act to assess compensation. To this end, the Respondent cannot be faulted for any failure to notify the Petitioner of the assessment or of his right to challenge it. 64.The Respondent's obligation, however, was to satisfy the compensation assessed by the Director. Be that as it may, any failure to honour that statutory obligation constitutes a breach of the duties imposed under the Work Injury Benefits Act rather than a violation of the Petitioner's constitutional rights. 65.The Court further observes that the Respondent has offered no explanation for issuing a cheque in the sum of Kshs. 9,130.00 when the Director had assessed compensation at Kshs. 48,437.60. 66.Having neither objected to nor appealed against the Director's assessment, the Respondent is bound by that determination and remains liable to pay the assessed amount in full. 67.In the final analysis, the Court finds that the Petitioner has failed to demonstrate, on the facts presented and the material on record, that the Respondent violated any of his constitutional rights as alleged. 68.Before concluding on this issue, the Court considers it necessary to underscore that the present Petition brings into sharp focus the doctrine of constitutional avoidance. In this regard, the Court draws guidance from the decision of the Supreme Court of Kenya in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, where it held as follows:“The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” 69.The same principle was reiterated by the Court of Appeal in Gabriel Mutava & 2 Others v Managing Director, Kenya Ports Authority & Another [2016] eKLR, where the Court held as follows:“Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize constitutional litigation… Of course, violations of constitutional rights may nonetheless be different, and more serious than the violations of statutory or contractual rights. There is no clear demarcation however, where one violation begins and ends, and when one violation should attract desperate remedies. In employment matters, such as was the case here, the contract of employment should have been the entry point. The terms and conditions of employment in the contract, govern the employment relationship, except to the extent that the terms are contrary to the law; or have been superseded by statute. Certainly invoking the constitutional route in the circumstances of this case was misguided. The Constitution should not be turned into a thoroughfare for resolution of every kind of common grievance…In saying all these, we are not oblivious to the fact that a party is entitled to sue under the Constitution even if there is an alternative remedy, and or other mechanism for the resolution of the dispute. However, it has since emerged on the authorities that constitutional litigation is a serious matter that should not be sacrificed on the altar of all manner of frivolous litigation christened constitutional when they are not and would otherwise be adequately handled in other legally constituted forums. Constitutional Litigation is not a panacea for all manner of litigation, we reiterate that the first port of call should always be suitable statutory underpinned forums for the resolution of such disputes.” Underlined for emphasis 70.Applying the foregoing precedents to the present case, the Court is persuaded that the Petitioner's grievances were more appropriately suited for determination under the Employment Act and the Work Injury Benefits Act, rather than by way of a constitutional petition. 71.Having found that the Petitioner has failed to establish any violation of his constitutional rights, the reliefs sought on account of unfair termination and the alleged infringement of constitutional rights are unsustainable. 72.The only relief that properly arises in the circumstances is an order directing the Respondent to pay the Petitioner the sum of Kshs. 48,437.60, being the compensation assessed and awarded by the Director on 5th February 2024 in respect of the work-related injury sustained by the Petitioner. The said amount shall attract interest at court rates from the date of this judgment until payment in full. 73.As the Petition has substantially failed, each party shall bear its own costs. DATED, SIGNED AND DELIVERED AT NYERI THIS 16TH DAY OF JULY 2026.………………………………STELLA RUTTOJUDGEIn the presence of:Ms. Nyakundi for the PetitionerNo appearance for the RespondentNdati Court AssistantOrderIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.