[2025] KEELRC 594 (KLR)

Mkaya v County Government of Taita Taveta & another (Petition E007 of 2024) [2025] KEELRC 594 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELRC 594 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Petition E007 of 2024

K Ocharo, J

January 16, 2025

Between

Gifton H. Mkaya

Petitioner

and

The County Government of Taita Taveta

1st Respondent

Governor Taita Taveta County

2nd Respondent

Ruling

Introduction. 1. Contemporaneously with the petition herein, the Petitioner filed a Notice of Motion application dated 30th June 2024 seeking: -a.That the application be certified as urgent, fit and proper to be heard ex parte and service thereof be dispensed with in the first instance.b.That there be and is hereby issued a Conservatory Order barring the 1st and 2nd Respondents from commencing, continuing or concluding any disciplinary proceedings against Mr. Gifton H. Mkaya or in any manner adversely interfering with his employment as the County Executive Committee Member [CECM] in Charge of Health, Taita Taveta County pending hearing and determination of this Application.c.That there be and is hereby issued a Conservatory Order barring the 1st and 2nd Respondents from commencing, continuing or concluding any disciplinary proceedings against Mr Gifton H. Mkaya or in any other manner adversely interfering with is employment as the County Executive Committee Member [CECM] in charge of Health, Taita Taveta County pending hearing and determination of this petition.d.That costs be provided for.

2. Upon being served with the petition and the application, the Respondents filed a Notice of Preliminary objection, the subject matter of this ruling, urging this Court to dismiss the application and the petition on the following grounds: -i.That the application & petition are misconceived and or bad in law.ii.That the application & petition is a non-starter and ill advised as the Orders and Prayers sought herein cannot issue for want of jurisdiction.iii.That the application & petition is a non-starter and ill-founded as it offends the doctrine and or principle of Constitutional Avoidance.iv.That the Honourable Court is devoid of Jurisdiction for reasons that the Petitioner’s employment did not have statutory underpinnings as to render a breach thereof actionable by was a Constitutional Petition.v.That the Honourable Court is devoid of jurisdiction for reasons that the Petitioner has not challenged the constitutionality of any statute in his Petition. The Petition as drawn lacks the particularity it needs to sustain a cause of action as pleaded.vi.That the Hounourable Court is devoid of jurisdiction for reasons that it is impermissible for the Petitioner to found a cause of action directly on the Constitution without alleging that the statute in question is deficient in the remedies available.vii.That the entire petition is bad in law, incompetent, frivolous & vexatious and the same is otherwise an abuse of court process.

3. The Court gave orders for the preliminary objection to be argued by way of oral submissions. The Parties complied. This ruling is therefore, with the benefit of their submissions.

The Respondents’ Submissions. 4. The Respondents submitted that the locus classicus case for the definition of a preliminary objection is Mukisa Biscuits Manufacturing Co.Ltd VS- West End Distributors Ltd[ 1969] EA 698.

5. It was submitted further that where legislation has provided a remedy and prescribed a clear procedure for redress of a certain grievance, a litigant cannot invoke the provisions of the Constitution for redress of such a grievance. A Court will not determine a Constitutional issue when a matter may properly be decided on the basis of enacted statutes and legislation. To buttress this submission, reliance was placed on the cases of, Speaker for the National Assembly v Karume [2008] KLR, and Communication Commission of Kenya & Others v Royal Media Services Limited &5 others [2014] eKLR.

6. The Respondents clarified that the issue in their objection isn’t whether or not the Employment & Labour Relations Court has jurisdiction to enforce the bill of rights. Rather the issue raised is broadly whether the Court has jurisdiction to entertain a Constitutional Petition alleging breach of the Petitioner’s contract of employment and Human Resource Procedures Manual.

7. It was submitted further that the Human Resource matters breach of employment contract and Human Resources Manual, are governed by the Employment Act and Labour Relations Act. These statutes offer adequate remedies and orderly enforcement mechanisms.

8. The issue to be determined in the Petition is whether or not, the Respondent can legally send the Petitioner on compulsory leave. This issue falls within the ambit of the Employment Act. The petitioner is only permitted to move the Court through a Constitutional Petition where they seek to challenge the constitutionality of statute. To buttress this submission, reliance was placed on the Court of Appeal decision in the case of Sumnayya Athmani Hassan vs- Masinde Simidi & another [2019] eKLR.

9. It was concluded that the doctrine of constitutional avoidance militates against the Petitioner’s Petition and application.

The Petitioner’s Response Submissions. 10. The petitioner distils two issues for determination on the Respondent’s preliminary objection thus,a.Whether the preliminary objection is meritedb.Whether the Court has jurisdiction to entertain the petition.

11. Submitting on the first issue, Counsel for the Petitioner stated that the preliminary objection raised by the Respondents is not a valid and properly taken preliminary objection. It doesn’t raise pure points of law but is riddled with questions of fact, which the Court cannot determine without delving into the matters in issue. To support this point, reliance was placed on the decisions in Mukisa Biscuits Manufacturing Company Limited [supra], and Omondi vs- National Bank of Kenya Ltd & Others [2001]1 EA 177.

12. It was further submitted that the doctrine of constitutional avoidance is wrongly invoked in this case. Constitutional avoidance was defined by the Supreme Court in the case of Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 others [2014] eKLR, thus: -“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 Kentrige AJ, articulated the principle of avoidance in his minority Judgment as follows [ at paragraph 59]:I would lay it down as 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.’’

13. It was argued that the effect of the principle enunciated in the above-stated decision is that where legislation has provided a remedy and prescribed a clear procedure for addressing a particular grievance, a litigant cannot invoke the provisions of the Constitution for redress of the grievance. A keen interrogation of the specific circumstances of the petitioner’s case will reveal that the doctrine of constitutional avoidance is inapplicable. For the principle of constitutional avoidance to hold, it is a requirement to show that the grievance can be addressed by other means.

14. This Court should note that the Petitioner is contesting the disciplinary process that he is being subjected to, which is in contravention of his fundamental right to fair labour practices. The Employment Act only provides guidelines, when it comes to disciplinary action to be conducted by an employer. How a party is to seek redress for any grievance for disciplinary proceedings can therefore only be found in the Human Resource Manual, or contract of employment as provided for under Section 10 of the Employment Act. As it stands, such Human Resources Manual which prescribes the manner in which a grievance by an employee shall be made on issues disciplinary, hasn’t been availed to this Court.

15. In the circumstances, the Respondents cannot be heard to allege that there exists another mechanism to resolve the issues raised in the petition, where such resolution procedure is absent in the Employment Act and no other procedure has been availed to court, to show that an alternative means of addressing the grievance raised by the petitioner herein exists.

16. While the Employment Act provides for remedies available to an employee whose employment has been unlawfully terminated, or who has been unlawfully dismissed from employment, there is no provision on which an employee can base a claim for unlawful disciplinary proceedings having been instituted.

17. It was further submitted that Article 41 of the Constitution provides that every person has a right to fair Labour practices. The provision protects every person from adverse labour practices that could be detrimental to their interests and that could be done in contravention of the law. In light of this, the Petitioner was right to approach the Court as he did. To fortify this submission, the decision in Mulwa Msanifu Kombo v Kenya Airways [2013] eKLR, was cited.

18. The Respondents’ submissions that the Court is devoid of jurisdiction as the Petitioner’s employment didn’t have statutory underpinning as to render a breach thereof actionable by way of a constitutional petition, stand on quicksand. Under Article 22 of the Constitution, every person has a right to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or is threatened. Therefore, a person may approach the Court via a constitutional petition, provided that they can particularize that their rights under the Bill of Rights have been denied, violated or threatened. To bolster this point, the decision in Godfrey Paul Okutoyi & Others v Habil Olaka & Another [2018] eKLR, was cited.

19. Contrary to the Respondent’s Counsel’s submissions, constitutional petitions aren’t only concerned with challenges on the constitutionality of a statute[s]. To support this point, the holding in Hakiziman Abdulkarim v Arrow Motors E A Ltd &another [2017], was cited.

20. The Petition herein is crafted and presented with reasonable degree of precision on what the Petitioner is complaining about, and the specific provisions that have been infringed upon. This in compliance with the principles laid out in Anarita Karimi Njeru.

Analysis and Determination 21. I have carefully considered the grounds raised in the Notice of preliminary objection, and the respective submissions by the parties herein and distil the following issues for determination:-i.Whether the preliminary objection is properly taken.ii.Whether the Petitioner’s petition herein is properly presented.iii.Whether the doctrine of Constitutional avoidance militates against the Petitioner’s Petition and application herein.

Whether the preliminary objection is properly taken. 22. Inarguably, a preliminary objection validly and properly taken must be on a pure point[s] of law, free from facts calling for proof or requiring evidence to be adduced for them to be ascertained. Where a court needs to investigate such facts, such an issue cannot be raised as a preliminary objection on a point of law.

23. This principle on what constitutes a proper preliminary objection has been followed by courts in Kenya for many years and there is a host of authorities to that effect. In the case of Omondi vs National Bank of Kenya Ltd & others [2001] KLR 579; [2001] 1 EA 177, the Court observed;“.. In determining [preliminary objections] the Court is perfectly at liberty to look at the pleadings and other relevant matters in its record and it is not necessarily to file affidavit evidence on those matters…. What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion.”

24. It is with the foregoing principle in mind that I hold that most of the points raised in the Notice of preliminary objection, are not pure points of law, and cannot be properly argued as a basis for preliminary objection. This has informed this Court’s finding that there are only two issues for determination under the preliminary objection, those brought forth in paragraph 21 [II] and [III], above.

25. Largely, therefore, the preliminary objection is improperly taken, however, this Court takes the liberty to render itself on the two forested issues, which it considers to be on pure points of law.

Whether the Petition herein is properly presented. 26. For good purpose, in constitutional litigations there has always been insistence that the petition the basis for the litigation be crafted and presented with a reasonable degree of precision on the Constitutional provisions violated or threatened to be violated, how they have been violated or are threatened to be violated, and where a violation of the petitioner’s right[s] in the Bill of rights is alleged, the rights and the manner in which they have been violated on infringed upon. In my view, a reasonable degree of precision does not equate to mathematical precision.

27. Elaborating on this, the Court in the Anarita Karimi Njeru vs the Republic [1976-1980] KLR 1272, the Court stated;“We could, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important [ if only to ensure that justice is done in his case] that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

28. Reinforcing the principles in the Anarita Karimi case [supra] the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] ekLR, not only reaffirmed its essence but also applied a contemporary outlook of its enduring legacy. The Court observed that the precision requirement shouldn’t be mistaken for exactitude. Further, the doctrine in the Anarita Karimi case ensures a proper definition of issues in a constitutional petition, so that the Court can apply its mind to the real issues. Additionally, it relays to the other party the exact case that it has to defend.

29. I have carefully considered the Petitioner’s petition and have no doubt that it meets the threshold set out in the Anarita Karimi case.

Whether the doctrine of Constitutional avoidance militates against the Petitioner’s Petition. 30. Post the inauguration of the 2010 Kenyan Constitution, certainly, due to its overarching nature, we have witnessed a surge in the number of cases styled as constitutional matters being filed, whereas their disputes have civil or contractual features and are capable of determination before other forums. It is now trite through case law that courts should not entertain such disputes.

31. Constitutional avoidance is a doctrine that has developed regarding the interpretation of constitutional questions. Under the doctrine, the courts avoid ruling on constitutional questions if they can resolve a case on other grounds, including statutory issues. The fundamental principle of constitutional avoidance is courts should determine a constitutional issue only when it is a strict necessity.

32. The Supreme Court of Kenya in Communications Commission of Kenya and 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR, observed thus: -“(105)We shall now turn to the Constitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional -Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.”(106)The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.”

33. The long and short of the Respondents’ contention is that the matters raised in the Petitioner’s petition can be adequately litigated in an ordinary employment claim under the Employment Act. I carefully considered the facts relating to the dispute [see paragraphs 20-31 of the petition], the alleged violations of the Constitution and Fundamental Rights and Freedoms [see paragraph 32 as [a] –[g], and the reliefs sought, as brought out in the petition, and take a clear view, that the petition herein is not an employment claim disguised as a constitutional dispute.

34. This Court hasn’t lost sight of the Respondents’ contention that the Petition herein is all about an alleged breach of the Petitioner’s contract of employment and its Human Resource Procedure Manual and that there exists within the contract and the Manual, mechanisms through which the breach would be redressed. Despite this bold but general assertion, they didn’t provide specifics.

35. The rights and Constitutional stipulations alleged to have been violated, in my view, largely do not fall under the space of the Employment Act, to be adequately litigated, interrogated and determined, under an ordinary employment claim under the statute.

36. Considering the foregoing premises, I come to the inevitable conclusion that the doctrine of constitutional avoidance doesn’t militate against the petitioner’s petition herein.

37. In the upshot, I find the Respondents’ preliminary objection herein unmerited, it is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED VIRTUALLY IN MOMBASA THIS 16TH DAY OF JANUARY 2025. Ocharo KebiraJUDGEOrderIn 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 has 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 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.A signed copy will be availed to each party upon payment of Court fees.Ocharo KebiraJUDGE