https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2429

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI PETITION NO. E015 OF 2026 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION IN THE MATTER OF ARTICLES 22, 23, 28, 41, 47 & 50 OF THE CONSTITUTION OF KENYA, 2010 BETWEEN SALIMAH AMEEN PIRBHAI…................................................................................................. PETITIONER VERSUS DIAMOND TRUST BANK KENYA LIMITED................................................................... RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno RULING 1. The petitioner, subsequent to dismissal from employment, filed a petition dated 16th January 2026 against the respondent seeking the following relief – 2. A DECLARATION that the Respondent violated Articles 28, 41 and 47 of the Constitution. 3. A DECLARATION that the Respondent subjected the Petitioner to workplace harassment, intimidation, and unfair labour practices. 4. General damages for violation of constitutional rights. 5. Aggravated damages for abuse of power, bad faith, and psychological harassment. 6. A DECLARATION that the termination of the Petitioner’s employment was unlawful and unfair. 7. Compensation equivalent to twelve (12) months’ gross salary under Section 49(1)(c) of the Employment Act. 8. Kshs. 193,218 unlawfully deducted. 9. Unpaid leave days 10. Costs of the Petition and interest 11. Any other relief this Honourable Court deems just. 12. The respondent entered an appearance and filed a response. It further filed an application dated 5th March 2026, supported by the affidavit of Cecil Otira dated 6th March 2026, seeking the petition dated 16th January 2026 to be struck out with costs on the following grounds- 13. The petition improperly seeks to constitutionalize an ordinary employer-employee dispute concerning suspension, disciplinary proceedings and termination of employment, matters comprehensively regulated under the Employment Act, 2007. 14. The petition discloses no independent or justiciable constitutional controversy, but merely repackages alleged unfair termination and workplace grievances as violations of Articles 28, 41, 47 and 50 of the Constitution. 15. The petition fails to plead, with reasonable precision, the specific unconstitutional acts attributable to the Respondent, the manner of alleged infringement, and the nexus between the impugned conduct and the constitutional provisions relied upon. 16. The acts complained of, including investigations, suspension, disciplinary hearings and dismissal, are recognized incidents of lawful employment management and do not, without more, constitute constitutional violations. 17. The grievances raised relate to procedural fairness, justification for termination and terminal dues, issues for which adequate and effective remedies exist under sections 41, 43 and 45 of the Employment Act, thereby attracting the doctrine of constitutional avoidance. 18. The petition would improperly convert ordinary employment disputes into constitutional litigation and circumvent the ordinary evidentiary process, including the respondent's right to test allegations through cross-examination. 19. The petitioner opposed the application vide her affidavit dated 26th May 2026 as follows- 20. THAT contrary to the Respondent’s assertions, this Petition does not merely concern ordinary termination of employment, procedural defects in disciplinary proceedings, or terminal dues. 21. THAT the Petition concerns a sustained and coordinated course of intimidation, coercion, abuse of institutional power, psychological harassment, retaliatory conduct, and unconstitutional intrusion into my private and family life following my escalation of concerns regarding suspicious withdrawals from a deceased customer’s account. 22. THAT as pleaded at paragraph 8 of the Petition, upon my escalation of the said concerns, the Respondent embarked upon a course of conduct aimed at suppressing the disclosure, displacing institutional responsibility, and recasting the matter as alleged individual misconduct on my part. 23. THAT following the said escalation, I was repeatedly summoned to informal and extra-procedural meetings held outside official premises and outside ordinary working hours by senior executives of the Respondent, including meetings at Ole Sereni Hotel and Serena Hotel as pleaded at paragraphs 11 and 12 of the Petition. 24. THAT during the said meetings, I was subjected to intimidation, coercion, threats of arrest, threats of reputational destruction, and pressure to accept personal blame for the disputed withdrawals. 25. THAT I was further pressured to alter my account of events, suppress further communication regarding the withdrawals, and sign statements favourable to the Respondent’s narrative, failing which I was informed that my employment, reputation, and personal liberty were at risk as pleaded at paragraph 13 of the Petition. 26. THAT the conduct complained of was not part of any lawful disciplinary process contemplated under the Employment Act or the Respondent’s Human Resources procedures, but constituted extra-procedural coercive conduct undertaken outside recognized disciplinary structures. 27. THAT critically, and in a manner wholly outside the scope of ordinary employment regulation, the Respondent escalated the intimidation beyond the workplace by summoning my brother to an off-site meeting for purposes of exerting indirect pressure upon me as pleaded at paragraph 14 of the Petition. 28. THAT as further pleaded at paragraphs 17, 18 and 19 of the Petition, the Respondent’s conduct: (a) imported workplace allegations into my private and family life; (b) subjected me to humiliation, communal shame, and loss of standing within my family; (c) fractured family trust and security; and (d) weaponized my family relationships as instruments of coercion and intimidation. 29. THAT the said conduct caused me severe emotional distress, humiliation, psychological trauma, fear, reputational injury, and profound interference with my dignity, autonomy, and personal relationships. 30. THAT these pleaded facts disclose direct, substantial, and independent violations of Article 31 of the Constitution concerning privacy, dignity, personal autonomy, and protection of family life, matters plainly incapable of adequate vindication through the ordinary statutory remedies contemplated under sections 41, 43, and 45 of the Employment Act. 31. THAT the Employment Act regulates disciplinary procedure and termination of employment, it does not authorize employers to intrude into private family relationships, weaponize familial pressure, or extend Page 3 of 4 disciplinary coercion beyond the workplace into an employee’s personal and domestic sphere. 32. THAT the Petition therefore raises exceptional constitutional questions transcending an ordinary employer-employee dispute and falling properly within the constitutional jurisdiction of this Honourable Court. 33. THAT contrary to the Respondent’s assertions, the Petition does not merely seek to constitutionalize ordinary workplace grievances, but challenges the abusive and unconstitutional manner in which the Respondent exercised coercive institutional authority against me. 34. THAT the constitutional violations pleaded arise independently of the termination itself and concern direct violations of my rights under Articles 28, 31, 41 and 47 of the Constitution. 35. THAT while the Petition also seeks remedies ordinarily available under the Employment Act, the existence of statutory remedies does not bar this Honourable Court from adjudicating direct constitutional violations arising within an employment relationship. 36. THAT the Respondent’s application improperly seeks to isolate the dismissal component of the dispute while ignoring the broader unconstitutional conduct expressly pleaded in the Petition. 37. THAT the Petition sufficiently pleads: (a) the constitutional provisions violated; (b) the specific acts complained of; and (c) the manner in which the violations occurred. 38. THAT the Respondent’s allegations that the Petition lacks precision are therefore incorrect and unfounded. 39. THAT the issues raised in the Petition involve serious and contested questions of fact requiring evidentiary interrogation at a full hearing and cannot properly be determined summarily at a preliminary stage. 40. THAT the Respondent’s application improperly invites this Honourable Court to determine disputed factual matters without the benefit of viva voce evidence and cross-examination. 41. THAT striking out a constitutional petition is a draconian remedy which ought to be exercised sparingly and only in the clearest of cases, which threshold has not been met herein. 42. THAT unless the Petition is heard on its merits, I shall suffer grave prejudice and be denied the opportunity to fully present evidence concerning the Respondent’s unconstitutional conduct. 43. THAT I am advised by my advocates on record, which advice I verily believe to be true, that the Petition discloses genuine constitutional issues requiring substantive judicial determination. 44. THAT the Respondent’s application is therefore misconceived, legally untenable, and intended to prematurely terminate proceedings so as to shield the Respondent from substantive judicial scrutiny regarding the unconstitutional conduct complained of. 45. THAT it is in the interests of justice that the Respondent’s application be dismissed with costs. 46. The respondent/applicant filed a further affidavit of 10th May 2026 sworn by Cecil Otira as follows- That suspension, disciplinary proceedings and eventual termination of employment was following investigations into suspected irregular banking transactions at the respondent's Parklands Branch. All the allegations pleaded by the petitioner, including summons and interrogation of her family members, investigations, questioning by senior officers, meetings, suspension, disciplinary proceedings, alleged intimidation, procedural unfairness and termination of employment, arose directly from and are inseparably connected to the employment relationship and the respondent's internal disciplinary processes. The respondent's application does not seek determination of disputed facts at an interlocutory stage. It raises a pure jurisdictional issue as to whether the matters pleaded disclose a distinct constitutional controversy warranting invocation of constitutional jurisdiction, or whether they fall within the ordinary employment law framework. The allegations relating to investigations, suspension, disciplinary processes, restriction of access to systems, alleged unfair treatment, intimidation and reputational harm are matters routinely addressed by the court under sections 41, 43 and 45 of the Employment Act. The mere invocation of constitutional provisions or use of terms such as "harassment", "coercion" or "intimidation" does not automatically convert an employment dispute into a constitutional petition. Error! Unknown document property name. The petition does not challenge the constitutionality of any provision of the Employment Act, 2007, nor demonstrate that the statutory remedies available under the employment law framework are inadequate. The allegations relating to alleged confinement, confiscation of the petitioner's mobile phone, denial of communication, intimidation and deprivation of liberty are disputed allegations of fact requiring evidentiary interrogation. The said allegations have not been supported by any contemporaneous documentary, electronic, medical or independent evidence and remain bare allegations requiring strict proof. If the matter proceeds as a constitutional petition founded principally on affidavit evidence, the respondent will be prejudiced and deprived of the proper opportunity to fully test the petitioner's allegations through the ordinary evidentiary process, including oral testimony and cross-examination. The issues and circumstances leading to the petitioner's termination involve complex banking transactions and suspected fraudulent dealings which cannot be adequately explained through affidavit evidence alone. If the suit was properly instituted, the respondent would require oral testimony from at least three witnesses to explain the sequence of transactions, the investigations undertaken, and the nature and implications of the banking records and investigation documents intended to be produced before the court. The petitioner has failed to plead the alleged constitutional violations with the precision required under settled constitutional jurisprudence. While several constitutional provisions are cited, the petition does not sufficiently identify the specific unconstitutional acts attributable to the respondent, the precise manner of infringement, or how the alleged conduct falls outside the ordinary employment relationship. The remedies sought in the petition, including compensation for unfair termination, terminal dues, declarations relating to the disciplinary process and damages arising from the employment relationship, are remedies which the court is fully empowered to grant while exercising its ordinary statutory jurisdiction under the Employment Act and the Employment and Labour Relations Court Act. The petitioner has therefore failed to demonstrate any exceptional circumstances warranting invocation of the court's constitutional jurisdiction in place of the ordinary statutory employment law framework. 47. The court directed the application be canvassed by way of written submissions. Both parties filed. Decision whether the application to strike out the suit is merited 1. In D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, Madan JA famously stated: Page 6 of 7 "No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment." 2. The crux of the instant application is that the petition offends the doctrine of constitutional avoidance. The doctrine of constitutional avoidance was pronounced in S vs. Mhlungu 1995 (3) SA 867 (CC) 59 where the court laid out constitutional avoidance as a general principle in the following terms: “I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.” The petitioner was subjected to investigation, interrogation and disciplinary proceedings culminating in dismissal from employment . The petitioner pleaded as follows-‘The Respondent's disciplinary process was fundamentally opaque and unlawful. Despite the Petitioner's written requests on 21st July and 29th September 2025, the Respondent at no time supplied the evidence against her nor provided valid, particularized grounds justifying summary dismissal under Section 44 of the Employment Act. The disciplinary hearing on 8th October 2025 was conducted in bad faith and in breach of Section 41 of the Employment Act. The Petitioner was denied access to evidence, the right to call witnesses, a meaningful opportunity to be heard, and any record of the proceedings in breach of clause 3.7 of the HR Manual On 13th October 2025, the Respondent summarily dismissed the Petitioner on vague, unsubstantiated, and pre-determined grounds. 27 At the time she was earning KES 649,900. Upon dismissal, the Respondent unlawfully deducted Kshs. 193,218 from the Petitioner’s terminal dues without lawful authority or consent. Following her dismissal, the Petitioner invoked her contractual and statutory right of appeal against the disciplinary decision. At all material times, the Respondent’s disciplinary and appellate processes were governed by its Human Resources Policy and Procedures Manual, including section 3.6.3, which requires that a decision on an appeal “will be communicated to the employee within seven (7) days.” The Petitioner duly lodged her appeal on 21st October 2025. The Petitioner avers that contrary to the mandatory requirements of its own policy, the Respondent failed to communicate any decision on the appeal within 7 days, or at all. On 11th November 2025, owing to the Respondent’s prolonged inaction, the Petitioner issued a formal demand raising breaches of her constitutional rights and unfair termination. Only thereafter did the Respondent purport to act by issuing a letter dated 14th November 2025 summoning the Petitioner to an “Appeal Disciplinary Hearing.” The Respondent’s belated attempt to convene an appeal hearing, undertaken only after receipt of the Petitioner’s demand and outside the Page 6 of 11 timelines prescribed by its own policy, was procedurally improper, illusory, and incapable of curing the prior breach. In the absence of any timely communicated appeal decision, the Petitioner avers that there was no lawful or subsisting decision capable of being the subject of an appeal, rendering the purported appellate process a nullity and constituting a breach of the Petitioner’s right to fair administrative action under Article 47 of the Constitution. The Petitioner avers that the termination was not the primary wrong, but the culmination of sustained retaliation, intimidation, and unconstitutional labour practices. ‘’ 3. The petitioner further pleaded as follows- ‘Particulars of breach of fair labour practices – ‘Article 41 of the Constitution guarantees the petitioner the right to fair labour practices, including treatment with dignity, good faith, procedural integrity, and freedom from harassment, intimidation, retaliation, and abuse of employer power. (a) In particular, the Respondent subjected the Petitioner, while on suspension, to repeated informal meetings held outside official premises and working hours, without notice of purpose or procedural safeguards, thereby exposing her to fear, uncertainty, and psychological pressure. (b) The Respondent further breached fair labour practices by ambushing the Petitioner in outside office meetings attended by multiple senior executives, denying her the opportunity for preparation or representation, and converting what ought to have been a regulated process into an intimidating confrontation. (c) The breach was aggravated when the executives at the meetings subjected the Petitioner to intimidation, blackmail, and threats of arrest leading to loss of her personal liberty and loss of reputation in an effort to blackmail the Petitioner to concede to the withdrawals. (d) On 15th August 2025, the Respondent escalated the coercive conduct beyond the workplace by summoning the Petitioner’s brother in order to exert indirect influence and psychological pressure upon the Petitioner, thereby acting oppressively and retaliatorily in a manner wholly incompatible with fair, humane, and dignified employment practices. (e) Taken cumulatively, the Respondent’s conduct reduced the employment relationship to one governed by blackmail, threats, Page 4 of 11 fear and coercion, thereby destroying the conditions of fairness, dignity, and good faith protected under Article 41 of the Constitution.’’ It is apparent to the court that all the grievances have been pleaded and placed under Article 41 of the Constitution. Article 28 pleaded in the prayers is about dignity violation. The right also falls under pleaded violations of Article 41. I find the issue of constitutional avoidance could be ascertained from the pleadings without much inquiry. The petitioner relied on the decision in Ouko v Kenya Railways Corporation (Employment and Labour Relations Petition E010 of 2025) [2025] KEELRC 2652 (KLR), where the respondent similarly sought to strike out a constitutional petition on the ground that it was merely an ordinary employment dispute that ought to have been pursued by way of a memorandum of claim. The Court rejected that argument and held: "The petitioner has averred that his rights under the constitution and in particular articles 41, 47 and 259 of the constitution have been breached. To establish whether the rights of the petitioner under the constitution have been breached or not, this court would have to delve into factual [issues] which in law cannot be determined as a preliminary objection as established in the Mukisa Biscuit case." The Court further held:- "This court is being called upon to delve into factual issues at this point which in my view is beyond its scope as a preliminary issue. I find the application thus not merited and I dismiss it accordingly and direct the parties to proceed with the main petition." I was not persuaded by the court's decision. The issue of constitutional avoidance was apparent from the prayers sought in the petition. I upheld the decisions cited by the respondents in Hassan v Simidi & National Oil Corporation of Kenya (Civil Appeal 195 of 2016) [2019] KECA 107 (KLR) (6 December 2019) (Judgment)- (EM Githinji, W. Karanja, M. Koome JJA) who held: "It is evident that the petition was hybrid combining violations of various constitutional rights; employment rights under the Employment Act and breach the Public Officers Ethics Act. However, the underlying complaint was the alleged unlawful interdiction and subsequent dismissal of the 1st respondent by the Corporation and appellant. The specific remedies sought were general damages, terminal benefits and issuance of certificate of service. Error! Unknown document property name. Article 41 rights are enacted in the Employment Act and Labour Relations Act. The two Acts and the rules made thereunder provide adequate remedy and orderly enforcement mechanisms. The 1st respondent filed a petition directly relying on the provisions of the Constitution for enforcement of contractual rights governed by the Employment Act without seeking a declaration of invalidity of the provisions of the Employment Act or alleging that the remedies provided therein are inadequate. The petition did not raise any question of the interpretation or application of the Constitution. Where a 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. In conclusion, we find that the alleged unlawful interdiction and termination of a contract of employment was not a constitutional issue and thus the petition did not disclose a cause of action anchored on the Constitution. Accordingly, the petition being incompetent, the court acted in excess of jurisdiction and erred in law in determining the petition." In Gabriel Mutava, Elizabeth Kwini & Mary Martha Masyuki v Managing Director Kenya Ports Authority & Kenya Ports Authority [2016] KECA 411 (KLR)- Makhandia, Ouko & M'Inoti JJA, the Court of Appeal emphasized that: "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. A corollary to the foregoing is the principle of constitutional avoidance. The principle holds that where it is possible to decide a case without reaching a constitutional issue that should be done. 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.". The court of appeal in Wajir Wasco Limited alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR) had similar findings. The court held-‘When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.”…c)the learned judge fell into error by failing to interrogate the applicability of the doctrine of exhaustion to the dispute before him.(d)the learned judge failed to appreciate that the germane issue before him was basically an employer employee dispute and the mere invocation of Articles of the [*Constitution*](https://kenyalaw.org/akn/ke/act/2010/constitution) did not bar him from addressing his mind to the question whether the respondents could get an adequate remedy at the forum provided under the statute. Consequently, the learned judge erred in dismissing the appellants’ Notice of Preliminary Objection.’(emphasis given) 4. In the instant case, the petitioner has indeed raised issues of a right to privacy violation during the investigation under disciplinary proceedings. The court noted that the petitioner also seeks remedies under the Employment Act. Are the rights alleged to have been violated outside the procedural fairness under the Employment Act? I find in the negative. Nothing under the Employment Act prevents the court from awarding on a finding of constitutional violations beyond procedural fairness. The facts in the case require application of the statute to determine whether there was unlawful and unfair termination. The court of appeal in Wajir case(above ) relied on [*Sports and Recreation Commission v Sagittarius Wrestling Club and Anor*](https://reports.zalari.co.zw/cases/2001-2-zlr-501-s-sports-recreation-commission-v-sagittarius-wrestling-club-anor)2001 (2) ZLR 501 (S) in the following passage:“…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.’ The petitioner's pleadings in the petition disclose that all the violations are under Article 41 of the Constitution, which right is legislated under Section 41 and 45 of the Employment Act, as procedural fairness. The grievance in the dispute is a claim of unlawful and unfair termination. The court is of the opinion that the statutory framework on employment and labour in Kenya is capable of sufficiently redressing the grievance in relation to the impugned termination of contract. As such, this matter ought to have been filed as an ordinary Claim as opposed to a Constitutional Petition. The dismissal was on 13th October 2025, thus the petitioner is within section 89 of the Employment Act to file a suit under the Act. 5. In the upshot, the application dated 5th March 2026 is allowed for offending the doctrine of constitutional avoidance. The petition is struck off. This decision being on procedural technicality, to temper justice with mercy, I order each party to bear own costs. 6. This file is marked as closed. 7. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner: Brian Ochieng petitioner/ Respondent: Njiri h/b Kiragu Kimani