https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1571

Murugo v National Executive Board Kenya Union of Domestic, Hotels, Educational Institutions, Hospital Workers Union & another (Constitutional Petition E012 of 2025) [2026] KEELRC 1571 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1571 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Meru Constitutional Petition E012 of 2025 SC Rutto, J June 4, 2026 IN THE MATTER OF ARTICLE 27 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF ARTICLES 41(1), 2(A), 43,47, 159 AND 162 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE ALLEGED VIOLATION OF THE PETITIONER'S RIGHTS TO FAIR LABOUR PRACTICES AND IN THE MATTER OF RULES 4 AND 10 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS, PRACTICE OF RIGHTS AND PROCEDURE RULES 2013) AND IN THE MATTER OF SECTIONS 5,10,12,26 AND 87 OF THE EMPLOYMENT ACT 2007 AND IN THE MATTER OF SECTION 48 OF THE LABOUR INSTITUTIONS ACT 2007 Between Kairithia Martin Murugo Petitioner and National Executive Board Kenya Union of Domestic, Hotels, Educational Institutions, Hospital Workers Union 1st Respondent Albert Obed Njeru, Secretary General, Kenya Union of Domestic, Hotels, Educational Institutions, Hospital Workers Union 2nd Respondent Judgment 1.The Petitioner instituted these proceedings through a Petition dated 21st October 2025, alleging salary underpayment from January 2019 to October 2025. The Petition is supported by the Affidavit sworn by the Petitioner, Mr. Kairithia Martin Murugo. 2.Mr. Murugo avers that he was engaged by the Respondents as an Organizing Secretary on 9th October 2006 and was initially deployed to Meru. He further states that in March 2010, he was issued with an appointment letter setting out his terms and conditions of service, although no job description was provided. 3.According to Mr. Murugo, he has served in various branches of the union, including Nanyuki, Isiolo, Naivasha, Nairobi, Kajiado, and Embu. 4.He avers that his gross monthly salary increased to Kshs. 15,000 in January 2014, was later reviewed to Kshs. 16,000, and subsequently increased to Kshs. 17,500 in January 2019. 5.Mr. Murugo further states that in July 2019, he wrote to the 2nd Respondent seeking clarification on how his position was classified for purposes of the applicable minimum wage guidelines. He avers that no response was forthcoming. 6.He deposes that his duties include recruiting and sensitizing potential union members, mobilizing members for meetings, conducting training and campaigns, negotiating and liaising with employers on labour-related matters, preparing reports on organizing activities, representing members in workplace disputes and engagements with management, and undertaking communication, public relations, and strategic planning functions in furtherance of the union’s objectives. 7.It is Mr. Murugo’s case that the nature of these duties demands competencies in interpersonal communication, persuasion, public speaking, and record keeping, and is comparable in scope and responsibility to the work performed by a salesman engaged in outreach, negotiations, reporting, and client engagement. He therefore contends that the Respondents’ failure to remunerate him at the level prescribed for a salesman amount to unequal pay for work of equal value. 8.On the basis of the foregoing, the Petitioner seeks the following reliefs:a.It be declared that the 1st and 2nd Respondents have violated Articles 41(1) and 2(a) and (b) and 5 of the Constitution of Kenya, Section 48 of the Labour Institutions Act and Sections 5,10,12, and 26 of the Employment Act.b.It be declared that the position of organizing secretary and that of a salesman are similar and that the position of organizing secretary be subjected to terms and conditions as per government minimum wage guidelines similar to that of a salesman.c.An order to pay the Petitioner a minimum wage of Kshs 36,235.96 as gross salary from October 2025 onwards.d.An order be issued directing the Respondents to pay Kshs 122,000/- as accrued long service award and continue paying as per the current memorandum of terms and conditions.e.An order be issued directing the Respondents to pay Kshs 863,306.76 as underpayment of wages.f.An order that the costs of this Petitioner be borne by the Respondents jointly and severally.g.Such other or relief as this Honorable Court may consider fit and proper in the circumstances. 9.The Respondents opposed the Petition through a joint Replying Affidavit sworn on 29th January 2026 by Albert Obed Njeru, the Secretary General of the Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDEIHA). 10.Mr. Njeru contends that the dispute before the Court is purely an employment matter concerning the interpretation and application of the Petitioner’s terms and conditions of service, and does not disclose any constitutional violations as alleged. He maintains that the issues raised can only be properly resolved through viva voce evidence and, consequently, ought not to have been instituted by way of a constitutional petition. 11.He further avers that the Petitioner was at all material times bound by the applicable terms and conditions of employment, together with the salary harmonization notices issued in 2018, 2020, and 2023. According to Mr. Njeru, the Petitioner has failed to demonstrate any form of discrimination warranting constitutional intervention, particularly by showing that another employee within the same cadre, job group, or job description performing substantially similar duties received a higher salary outside the applicable employment framework. 12.Mr. Njeru further contends that the Petition, as drawn, has not shown any violation of the Petitioner’s constitutional rights, which have been pleaded with precision and exactness. 13.He asserts that although the Petitioner has cited Article 41 and other provisions of the Constitution, he has failed to demonstrate with clarity the manner in which the alleged constitutional rights have been infringed so as to warrant the Court’s constitutional interpretation and intervention. 14.It is Mr. Njeru’s further contention that the dispute requires the examination and cross-examination of witnesses through viva voce evidence, yet the Petition does not establish any contravention of the constitutional provisions upon which it is founded. 15.Mr. Njeru further avers that the role of Organizing Secretary has always been clearly understood within the Respondent organization and has been consistently performed by the Petitioner throughout his employment. He adds that, despite discharging those duties over the years, the Petitioner never raised any concern regarding the scope or clarity of his job description until the institution of the present Petition. 16.He further deposes that the Petitioner’s remuneration has progressively increased over the years, with salary reviews being undertaken in consideration of the Respondents’ financial capacity, applicable collective agreements, performance evaluations, and prevailing economic conditions. In this regard, Mr. Njeru denies that the Petitioner has been underpaid, maintaining that the salary paid has at all times been commensurate with his position, qualifications, experience, and the Respondents’ financial capacity as a non-profit trade union organization. 17.Mr. Njeru further disputes the Petitioner’s contention that the position of Organizing Secretary should be equated with, or classified as, that of a salesman under the Government minimum wage guidelines. He avers that the functions of an Organizing Secretary are fundamentally distinct from those of a salesman in a commercial enterprise and adds that trade unions are non-profit organizations established to advance and protect workers’ rights rather than engage in commercial sales activities. 18.According to Mr. Njeru, the duties of an Organizing Secretary principally involve advocacy, representation, and coordination of union activities, functions which are materially different from sales-related responsibilities. 19.He further contends that the Government minimum wage orders relied upon by the Petitioner apply to specific sectors and job classifications and are therefore inapplicable to employees of trade unions. 20.Mr. Njeru further avers that the Petitioner has received his salary without complaint for 19 years and that any claim founded on a retrospective reclassification of his position is misconceived, devoid of merit, and ought to be dismissed. Submissions 21.The Petition was canvassed by way of written submissions. Only the Petitioner filed submissions, as the Respondents’ submissions were not traceable on the court’s physical record or the online portal at the time of writing of this judgment. This is despite the fact that on 29th April 2026, the Respondents were granted 10 days within which to file their written submissions. 22.On his part, the Petitioner has submitted that he had demonstrated that the Respondent failed to provide a job description, disciplinary rules, and applicable employment policies. 23.It was further submitted on behalf of the Petitioner that the Respondent failed to respond to his requests for clarification regarding the categorisation of the position of Organising Secretary under the applicable wage guidelines. According to the Petitioner, this amounted to unfair administrative action. 24.The Petitioner further submitted that he had shown that other comparable roles involved similar responsibilities and working conditions, yet his remuneration was determined arbitrarily, resulting in unequal treatment contrary to Article 27 of the Constitution. 25.It was the Petitioner’s position that his claim raises constitutional issues relating to fair remuneration and equality under Articles 27 and 41 of the Constitution, and is not merely a contractual dispute. Analysis and Determination 26.Having considered the Petition, the Respondents’ Replying Affidavit, and the Petitioner’s submissions, the Court has isolated the following issues for determination:a.Whether the Petition meets the threshold applicable to Constitutional Petitions;b.Subject to the finding in (a), whether there has been a violation of the Petitioner’s constitutional rights. Threshold for constitutional petition? 27.The Respondents have contended that although the Petitioner has cited Article 41 and other provisions of the Constitution, he has failed to demonstrate with clarity the manner in which the alleged constitutional rights have been infringed so as to warrant the Court’s constitutional interpretation and intervention. 28.The legal threshold for the institution of a constitutional petition was set out in the case of Anarita Karimi Njeru v Attorney General [1979] KLR 154, where the Court stated as follows: -“We would 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 to his case) that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed.” 29.This principle has further been amplified under Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (commonly referred to as “the Mutunga Rules”) in the following terms: -[10](2)The petition shall disclose the following—(a)the petitioner’s name and address;(b)the facts relied upon;(c)the constitutional provision violated;(d)the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;(e)details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;(f)the petition shall be signed by the petitioner or the advocate of the petitioner; and(g)the relief sought by the petitioner. 30.In relation to case law, the Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR reaffirmed this principle in the following terms: -“(43)The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19, 20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were enumerated. Further, paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars.(44)We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court referred to.” 31.In the Mumo Matemu case (supra), the Court further underscored the need for precision in constitutional pleadings, observing that it enables both the parties and the Court to clearly discern the issues for determination. The Court further noted that pleadings are a fundamental component of substantive justice, as they serve to give the opposing party fair and adequate notice of the case it is required to meet. 32.A consideration of the present Petition reveals that although the Petitioner has cited various provisions of the Constitution, he has not set out, within the body of the Petition, the particulars of the alleged constitutional violations attributable to the Respondents. 33.Indeed, the Petition does not disclose with clarity the specific constitutional rights said to have been infringed, nor does it demonstrate the manner in which the Respondents are alleged to have occasioned such infringements. 34.Consequently, the Court finds that the Petitioner has failed to plead the alleged constitutional violations with a reasonable degree of precision hence fails to meet the threshold established in the Anarita Karimi Njeru case. 35.The circumstances of the present case quickly bring to mind the doctrine of constitutional avoidance, which precludes courts from invoking constitutional interpretation or determination where a dispute can be effectively resolved through the application of existing statutory provisions, regulatory frameworks, or established legal principles. 36.The principle of constitutional avoidance was well articulated by the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, where the Apex Court held that:“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.” 37.Similarly, in the case of Gabriel Mutava & 2 others vs Managing Director, Kenya Ports Authority & another (2016) eKLR, the Court of Appeal held that:“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.” 38.The gravamen of the present Petition is that the Respondents have paid the Petitioner a salary that is allegedly not commensurate with the nature and scope of his duties. 39.Fundamentally, the Petitioner’s claim is anchored on the contract of employment between the parties, and more specifically, the remuneration paid thereunder. 40.It therefore follows that a resolution of the dispute turns on the application of Section 5(5) of the Employment Act, Section 48 of the Labour Institutions Act, as well as the relevant wage orders issued thereunder. 41.In essence, the Employment Act and the Labour Institutions Act constitute the primary statutory framework governing the determination of the issues raised herein. 42.Consequently, since the issues in dispute arise from an alleged underpayment of salary, they ought to be properly addressed through the interpretation and application of the relevant statutory provisions and not the Constitution. Differently expressed, recourse to the Constitution is not necessary for the resolution of the issues herein. 43.In the circumstances, the Petitioner ought to have invoked the Court’s jurisdiction under the Employment Act and the Labour Institutions Act, as the alleged grievances fall squarely within the statutory dispute resolution framework provided therein, rather than by way of a constitutional petition. 44.It should also be appreciated that the determination of whether the Petitioner’s duties are comparable to those of a salesman would require a detailed job analysis, involving an assessment of the specific tasks performed, operational responsibilities, requisite knowledge, skills, and qualifications for the job, as well as the expected output. 45.Such an inquiry would entail the taking of viva voce evidence, which would then be subjected to cross-examination. As such, the matter is more appropriately suited for determination through an ordinary claim rather than by way of a constitutional petition. 46.In sum, the instant Petition fails to meet the threshold of a constitutional dispute and further offends the doctrine of constitutional avoidance. 47.Consequently, the Petition dated 21st October 2025 is hereby dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED AT MERU THIS 4TH DAY OF JUNE 2026.………………………………STELLA RUTTOJUDGEIn the presence of:No appearance for the PetitionerMr. Jaoko for the RespondentsQabale 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.