https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1602

Odoyo v Mozilla Foundation & 2 others (Petition E236 of 2025) [2026] KEELRC 1602 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1602 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E236 of 2025 M Mbarũ, J June 12, 2026 Between Roselyn Awuor Odoyo Petitioner and Mozilla Foundation 1st Respondent Remote Technology Kenya Limited 2nd Respondent Mauve Kenya Limited 3rd Respondent Ruling 1.The ruling herein relates to the 1st respondent’s [Monzilla Foundation] application dated 24 February 2026. The application is premised under the provisions of section 12(3) (viii) of the Employment and Labour Relations Court Act, Rule 45(1) of the Employment and Labour Relations Court (Procedure) Rules, Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, section 1A, 1B. 3A of the Civil Procedure Act and Order 2, Rule 15(1). The petitioner is seeking Orders:a.This court be pleased to strike out the Petition dated 4 November 2025 in its entirety.b.Costs of the application are in the cause. 4.Mandy Rawlings supports the application through the Supporting Affidavit and avers that as the 1st respondent’s senior People Business Partner is conversant with the case and authorised to support the application. 5.Rawlings avers that the court lacks jurisdiction to hear and determine the petition because the alleged violations, as stated in the petition, do not amount to infringement of any rights or fundamental freedoms under the Bill of Rights but pertain to the alleged unfair termination of employment on grounds of redundancy. The petition offends the doctrine of constitutional avoidance by seeking to apply the Constitution to matters fully addressed by statute. All the issues arising from the petition ought to be adjudicated under the Employment Act through a normal suit brought by a Statement of Claim under the rules of procedure of the court. 6.Rawlings avers in the Affidavit that the petition is misconceived, an abuse of court process, and, in the interests of justice, should be struck out. 7.The 3rd respondent filed the Replying Affidavit of John Ellis, its Director, who avers that he is a director of the 3rd respondent and supports the application by the 1st respondent because its position is consistent with the 3rd respondent's view that these proceedings are framed wrongly and do not raise any constitutional issue and should have been an ordinary suit. The principles governing the filing of a constitutional petition have not been adhered to. The Employment Act provides the statutory framework under which an employer or employee may bring a dispute before the court. 8.Ellis avers that the petitioner was an employee under a written contract. The 3rd respondent’s role was limited to employment administration, payroll, local compliance and related obligations in Kenya. The petitioner resigned through notice dated 5 June 2024, ending his employment with effect from 30 June 2024. The contractual employment between the petitioner and the 3rd respondent thus ceased. The 3rd respondent had no obligations ot the end of the employment relationship. The alleged redundancy and unfair termination of employment, as alleged to have occurred in 2024 and 2025, are denied. Such claims are without merit and should be dismissed with costs. 9.The 1st respondent, as the applicant, submitted that the petition herein is bad in law and does not raise any question for the interpretation of the constitution. It offends the doctrine of constitutional avoidance. The cause of action relates to redundancy, which is fully addressed under the Employment Act (the Act) and can be adjudicated under the statutory framework governing employment. 10.The petition is that the 3rd respondent terminated the petitioner's employment contract as part of a redundancy process carried out by the 1st and 2nd respondents. The issues raised in the petition relate to matters exclusively addressed under the Act, namely sections 5, 10, 20, 21, 35, 40, 45, and 49, concerning procedures and employment rights. In this regard, the petitioner is allowed under Rule 7 of the Employment and Labour Relations Court (Procedure) Rules to file a Memorandum of Claim. Instead, the petitioner has lodged this petition citing breach of constitutional rights under articles 2, 10, 19 to 24, 27, 28, 41, 43 and 47 of the Constitution. 11.The issues addressed in the petition relate to the petitioner's employment and its termination. These are not matters necessary for the interpretation of the Constitution. 12.The 1st respondent submitted that parties ought not to invoke the constitutional provisions to litigate matters that are adequately addressed under procedural or substantive law, and certain constitutional rights derive practical effect from statutory enactments. Relying directly on the constitution is intended to circumvent the statutory mechanisms provided for resolving employment disputes. The petition is not proper and should be struck out. 13.In Hassan v Simidi & another Civil Appeal No. 195 of 2016, the court held that article 41 rights are enacted in the Act and the Labour Relations Act. These statutes allow the employee to secure rights under the Act. Where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the constitution without challenging the legislation in question. 14.In Josphat Ndirangu v Henkel Chemicals (EA) Ltd [2013] eKLR, the court held that a litigant should not avoid the provisions of the Act regarding unfair termination of employment and go behind statute to rely directly on the provisions of Article 41 of the Constitution. Such provisions are given effect under the Act and the Labour Relations Act. Such findings are reiterated in Elizabeth Mburu v Kenya Breweries Limited, Cause No. 1385 of 2012, and Abdullahi v Ministry of Interior and National Administration & 3 others, Petition No. E001 of 2025 states that where a matter can be resolved through alternative processes, it is preferable to pursue those options.The petition is thus incompetent and should be struck out with costs. 15.The 3rd respondent supported the 1st respondent’s application and submitted that the petition is an ordinary employment dispute framed as a constitutional petition to evade the proper statutory pathway and to enlarge the dispute beyond what the law permits. The grievances pleaded by the petitioner do not disclose a distinct constitutional controversy. The claims made are regulated under the Act. 16.The 3rd respondent submitted that the petition does not disclose a distinct justiciable constitutional question as held in Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. Where a dispute can properly be resolved by applying legislation or ordinary legal principles, the court ought not to resort unnecessarily to constitutional adjudication. The principle is grounded under judicial restraint, orderly development of the law, and respect for statutory frameworks enacted by parliament, as held in Communication Commission of Kenya & 5 others v Royal Media Service Ltd & 5 others [2014] eKLR. 17.The grievances pleaded by the petitioner are adequately addressed under the Act. The claim that there was unfair termination of employment following a redundancy is addressed under sections 47(5) d 40 of the Act. Invoking the constitutional route is unnecessary. The application by the 1st respondent should be allowed, and the petition struck out with costs. 18.The petitioner submitted that the petition discloses a prima facie case on constitutional violations that are capable of being addressed by the court. There is jurisdiction under Articles 22 and 23 of the Constitution to hear and determine the petition on the merits. 19.Article 162(2)(a) of the Constitution, read together with section 12 of the Employment and Labour Relations Court Act, allows the court to hear a petition, as held in Judicial Service Commission v Shollei & another Civil Appeal No. 50 of 2014. Where the mere fact that the dispute stems from an employment relationship, there is no reason to suggest that it cannot raise a constitutional issue that may require resolution through a constitutional petition. 20.The petitioner submitted that the petition concerns violations of the rights to equality and non-discrimination guaranteed under articles 27 and 28 of the constitution, as well as rights under articles 41, 43, and 47 of the constitution. These violations are pleaded adequately. 21.The doctrine of constitutional avoidance is not applicable in this case. In Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others, the Supreme Court defined the doctrine of constitutional avoidance as the principle that a court should not determine a constitutional issue when a matter may be disposed of on another legally suitable basis. In Mungai v Attorney General, Petition No. E416 of 2023, the court held that the constitution should not be invoked to resolve an ordinary suit whose remedies are available under common law, statute or other applicable law. 22.Such a doctrine applies where an alternative legal route exists capable of resolving the dispute. It prevents unnecessary constitutional litigation. It is not a bar to jurisdiction. It is a principle of judicial restraint to be applied where the dispute is purely statutory in character and does not raise a constitutional question. In Munir Shekh Ahmed v National Bank of Kenya [2018] KEELRC, the court held that the petition pleaded both constitutional violations and employment claims and that it had jurisdiction to hear the matter. This position is reiterated in Mwangi v Agence Francaise De Developpement (Petition E120 of 2025) [2025] KEELRC 3664 (KLR) (17 December 2025) (Ruling). 23.The petitioner submitted that the petition meets the legal threshold for a constitutional petition, the doctrine of constitutional avoidance does not apply, and the application by the 1st respondent should be dismissed with costs. Determination 24.The application by the 1st respondent addressed the issues that arose for determination, namely, whether this is a proper petition and whether the doctrine of constitutional avoidance should be applied. 25.The petitioner submitted at length about the principles under Communication Commission of Kenya & 5 others v Royal Media Service Ltd & 5 others [2014] eKLR. Indeed, under the doctrine of constitutional avoidance, there must exist an alternative legal route capable of resolving the dispute between the parties. The doctrine is meant to prevent unnecessary constitutional litigation and to ensure judicial restraint in addressing ordinary suits as constitutional petitions. Thus, for a party whose rights are enacted under a statute that provides a forum for litigation, that route should be taken before invoking the constitutional petition route. This ensures that parties are heard through the statute's primary mechanism. 26.Equally, a proper petition must precisely disclose the rights violated. This is to allow a respondent to understand the case against it and identify the constitutional question at issue, if any. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, the court held that constitutional jurisdiction is special and not meant to be triggered by broad dissatisfaction and generalised assertions and narrative. One must plead with precision. 27.The petitioner is seeking several remedies, including a declaration that the respondent violated rights under articles 27, 28, 41, 47, and 43 of the Constitution, as well as an award of damages. A declaration that the redundancy process was undertaken unfairly and that employment was terminated unfairly; hence, damages should be awarded. The petitioner also claims general damages for financial loss following the wrongful loss of employment, including payment of terminal dues. 28.The facts of the petition arise from the termination of employment following a redundancy. The petitioner calls this a redundant and interactive contract negotiation. 29.Such matters can well be addressed in a Memorandum of Claim as held in Sumayya Athmani Hassan v Paul Masinde Simidi & National Oil Corporation of Kenya [2019] eKLR. The rights at work are now addressed under the Employment Act and Labour Relations Act to explain the rights under Article 41 of the Constitution. 30.Further, under Rule 7 of the Employment and Labour Relations Court (Procedure) Rules, a party may file a claim and allege constitutional rights violations. under a Memorandum of Claim, judicial review, or assert their constitutional and fundamental right. Unless there is a breach of the law, a party should not invoke the constitutional petition route. See Munga v Kenya Maritime Authority & another; Inspector General (Corporations) & another (Interested Parties) (Petition E004 of 2024) [2024] KEELRC 2740 (KLR) (7 November 2024) (Ruling). 31.The 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 have 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). 32.The cause of action addressed and the orders sought thus weighed, this is not a proper petition. It does not urge a case that the available statutes regulating the employment relationship, including the protection of rights on the shop floor and a redundancy process, are inadequate; hence the invocation of the constitutional petition route. A Memorandum of Claim can well suffice to urge the instant case. 33.The application dated 24 February 2026 is with merit and is hereby allowed.The petition is struck out. Costs to the respondents. DELIVERED IN OPEN COURT AT NAIROBI, THIS 12 JUNE 2026.M. MBARŨJUDGEIn the presence of:Court Assistants: Nelson Kemboi and Catherine Makau……………………………………………… and…………………………………..…………..