https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2414

Vassanji v Diamond Trust Bank Kenya Ltd (Petition E016 of 2026) [2026] KEELRC 2414 (KLR) (20 August 2026) (Ruling) Neutral citation: [2026] KEELRC 2414 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E016 of 2026 JW Keli, J August 20, 2026 IN THE MATTER OF ARTICLES 22, 23, 28, 29, 31, 41, 47 & 50 OF THE CONSTITUTION OF KENYA, 2010 Between Tazim Sadrudin N. Vassanji Petitioner and Diamond Trust Bank Kenya Limited Respondent Ruling 1.The petitioner, subsequent to dismissal from employment, filed a petition dated 16th January 2026 against the respondent, seeking the following relief –1)A Declaration that the Respondent violated Articles 28, 29, 31, 41 and 47 of the Constitution.2)A Declaration that the Petitioner’s detention, interrogation, suspension, and dismissal were unconstitutional, unlawful, and unfair.3)General damages for violation of constitutional rights.4)Aggravated damages for abuse of power, bad faith, and coercive conduct.5)A Declaration that the termination of employment was unlawful and unfair.6)Compensation equivalent to twelve (12) months’ gross salary under Section 49(1)(c) of the Employment Act.7)Refund of KES 420,000 and KES 14,400 unlawfully deducted.Unpaid leave days8)Costs of the Petition and interest.9)Any other relief this Honourable Court deems just. 2.The respondent filed a response to the petition and further filed an application dated 5th March 2026 seeking the petition to be struck out with costs. The grounds of the application were as follows-a.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.b.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.c.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.d.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.e.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.f.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. 3.The petitioner filed a replying affidavit dated 26th May 2026 in opposition to the application as follows-a.That the Respondent’s application is misconceived, legally untenable, and intended to improperly defeat substantive adjudication of grave constitutional violations through a procedural shortcut.b.That contrary to the Respondent’s allegations, this Petition is not founded merely on ordinary employment grievances or statutory unfair termination claims, but on serious and independent violations of my constitutional rights and freedoms by the Respondent and its senior officers as specifically pleaded in paragraphs 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of the Petition.c.That the Petition expressly pleads and particularizes violations of Articles 28, 29, 31, 41, 47 and 50 of the Constitution arising from acts of unlawful detention, intimidation, coercion, confiscation of my personal phone, denial of communication, and extra-procedural interrogations conducted by the Respondent’s senior executives as set out in paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Petition.d.That as pleaded in paragraphs 7, 8, 9 and 12 of the Petition, upon resuming duty on 14th July 2025, I was confined in a locked room within the Respondent’s Security Office for approximately six and a half (6.5) hours without lawful justification, procedural safeguards, representation, or freedom to leave.e.That during the said confinement, as pleaded in paragraphs 8, 12, 18, 19 and 20 of the Petition: Page 2 of 4 (a) my personal mobile phone was confiscated; (b) I was denied access to counsel and external communication; (c) I was isolated from colleagues; (d) I was subjected to coercive questioning and intimidation.f.That the matters pleaded in the Petition therefore transcend ordinary contractual or disciplinary disputes and concern direct violations of my dignity, liberty, privacy, and security of the person protected under Articles 28, 29 and 31 of the Constitution as specifically pleaded in paragraphs 17, 18, 19 and 20 of the Petition.g.That further, as pleaded in paragraphs 11, 13, 14 and 15 of the Petition, while on suspension, I was repeatedly summoned to off-site meetings outside the Respondent’s premises and outside any recognized disciplinary framework.h.That in particular, and as pleaded in paragraph 14 of the Petition, on or about 6th August 2025, I attended a meeting at Serena Hotel convened by senior executives of the Respondent including Ms. Nasim Devji, Mr. Murali Natarajan, and Mr. Peter Koome.i.That the said meeting was conducted outside working hours, outside formal disciplinary procedures, without representation, without procedural safeguards, and in circumstances intended to intimidate and pressure me into accepting blame as specifically pleaded in paragraphs 15 and 16 of the Petition.j.That during the said meeting, as pleaded in paragraph 16 of the Petition:(a)I was threatened with arrest unless I admitted personal fault;(b)I was subjected to demeaning statements intended to damage my professional standing;(c)I was pressured to alter my account of events;(d)I was informed that my continued employment and reputation depended upon accepting responsibility for matters I disputed.k.That the Respondent’s assertion that the Petition merely repackages ordinary employment grievances is therefore false, misleading, and ignores the pleaded acts of coercion, intimidation, confinement, and abuse of power complained of in paragraphs 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of the Petition.l.That while the Petition also challenges the unfairness of the disciplinary and termination process as pleaded in paragraphs 25, 26, 27, 28 and 30 of the Petition, the termination itself is pleaded, at Page 3 of 4 paragraph 31 of the Petition, as the culmination of sustained unconstitutional conduct and not as the sole or primary grievance.m.That the constitutional violations pleaded herein cannot be adequately remedied solely through ordinary contractual remedies under the Employment Act as specifically pleaded in paragraph 33 of the Petition.n.That the Respondent’s invocation of the doctrine of constitutional avoidance is misplaced because:(a)the Petition raises direct and substantial constitutional questions;(b)the Petition seeks constitutional remedies for violations of fundamental rights;(c)the impugned conduct includes unlawful detention, coercion, intimidation, and invasion of privacy beyond ordinary employment management.o.That the Petition sufficiently pleads the constitutional violations complained of with reasonable precision by:(a)identifying the specific constitutional provisions violated;(b)setting out the acts complained of;(c)identifying the persons involved;(d)explaining the manner in which the violations occurred.p.That in particular:(a)paragraphs 18, 19, 20, 21, 22, 23 and 24 of the Petition expressly particularizes the specific constitutional violations complained of;(b)paragraphs 7, 8, 9, 12, 13, 14, 15 and 16 of the Petition set out the impugned conduct;(c)paragraphs 14 and 16 of the Petition identify the persons involved and the conduct attributable to them.q.That the Respondent’s arguments improperly invite this Honourable Court to determine disputed factual matters at an interlocutory stage without hearing evidence.r.That whether I was unlawfully detained, intimidated, coerced, denied representation, or subjected to unconstitutional treatment are substantive evidentiary matters that can only properly be determined upon a full hearing. Page 4 of 4 21s.That striking out a constitutional petition is a draconian remedy which should only issue in the clearest of cases where no arguable constitutional controversy exists.t.That this Petition plainly discloses serious and arguable constitutional violations warranting full judicial inquiry and determination on merit.u.That I am advised by my advocates on record, which advice I verily believe to be true, that where a petition discloses arguable constitutional issues, the Court ought to lean in favour of sustaining rather than terminating proceedings summarily.v.That the Respondent will suffer no prejudice incapable of compensation by costs if the matter proceeds to hearing. 4.The applicant filed a further affidavit by Cecil Otira dated 16th May 2026 and stated as follows- The petitioner's own affidavit confirms that the dispute arises from internal investigations, suspension, disciplinary proceedings and eventual termination of employment following investigations into suspected irregular banking transactions at the respondent's Parklands Branch. All the allegations pleaded by the petitioner, including 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. 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. 8. 9. 10. 11. 12. 13. 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. 5.The application was canvassed by way of written submissions. Both parties filed. Decision Whether the application to strike out the suit is merited 6.In D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, Madan JA famously stated: "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." 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.” 7.The background of the cause of action was that the petitioner was subjected to investigation, interrogation, and disciplinary proceedings, culminating in dismissal from employment. The petition states: ' On 13th October 2025, the Respondent summarily dismissed the Petitioner citing “unsatisfactory response” as the sole reason, without disclosing findings of fact, evidence, or a reasoned decision of a properly constituted panel.’ The petitioner alleged violations of her right to privacy and raised a grievance with the manner of investigations and asserted her rights to privacy were violated, that she was isolated for over 6 hours and interrogated outside work premises. The respondent /applicant contends the foregoing complaints fall under procedural fairness. 8.The court of appeal in Wajir Wasco Limited alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR) held as follows- ‘We are alive to the fact that every case has a constitutional underpinning, be it a criminal case, civil or commercial. However, it is important to point out that not every dispute ought to be brought as constitutional question. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute. The germane issue in this can case be resolved by interpreting the facts, the contract documents, (written or oral) and the relevant statutes. This discourse brings into focus the doctrine of constitutional avoidance, which is defined as a preference of deciding a case on any other basis other than one which involves a constitutional. The doctrine of constitutional avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor2001 (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.” 42.In Chawira & Ors v Minister of Justice Legal and Parliamentary Affairs & Ors CCZ 3/17 the Constitutional Court of Zimbabwe held:“…courts are generally loathe to determine a constitutional issue in the face of alternative remedies. In that event they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.” 43.The court in S v Mhlungu 1995 (3) SA 867 (CC) 59 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.” 44.The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In Kenya, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR (at para 256) that the principle of avoidance means that a court will not determine a constitutional issue when a matter may properly be decided on another basis. 45.Currie and de Waal in The Bill of Rights Handbook (2013) 72 opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The authors state:“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.” 46.Flowing from our analysis of the facts, the law and the legal principles laid down in decisional law, we have arrived at the following conclusions:(a)the learned judge fell into error when he failed to appreciate the clear provisions of the County Governments Act, the Public Finance and Management Act and the Public Service Commission Act which clearly define a county entity.(b)the learned judge took a narrow view of what constitutes a county entity as defined under section 2 of the Public Finance Management Act.(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 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.’ I upheld the decision as authority in the instant case. 9.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 violations that go beyond procedural fairness. The facts in the case require the application of the statute, the Employment Act, to determine whether there was an unlawful and unfair termination. The Court of Appeal in Wajir case (above ) relied on the decision in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor2001 (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.” further in the Court of Appeal in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR, In the matter, the court had these observations to make:-‘’It is evident that the petition was hybrid combining violations of various constitutional rights; employment rights under the Employment Act and breach of 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. In determining the petition, the ELRC relied wholly on the provisions of Employment Act. The 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. We adopt and uphold the general principle in the persuasive authority in Barbara De Klerk (supra) that 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. That principle has been reinforced by the Supreme Court in Communications Commission case (supra).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.’’ 10.The petitioner alleged violation of right under Article 28, and 29 and gave particulars that -(a) unlawfully detaining her in a locked room and treating her as an object of control rather than a rights-bearing individual; (b) subjecting her to blackmail, coercive and intimidating engagements by senior executives outside the workplace and outside any lawful disciplinary structure; (c) confiscating the Petitioner’s mobile phone; (d) exposing her to humiliation, fear, and stigma within a regulated sector where trust and integrity are foundational. Particulars of breach of privacy – Article 31 of the Constitution - The confiscation of the Petitioner’s phone and denial of private communication with counsel or colleagues constituted an unlawful intrusion into her private affairs and communications. Particulars of breach of fair labour practices – Article 41 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. In breach thereof, the Respondent: (a) detained and interrogated the Petitioner in a coercive manner upon her resumption of duty, outside any recognized disciplinary safeguards; (b) subjected the Petitioner while on suspension to informal meetings outside working hours and away from the official premises, without notice of purpose or procedural safeguards, thereby exposing her to fear, uncertainty, and psychological pressure; (c) denied the Petitioner representation and converted employment issues into blackmail, intimidation and harassment; . The Court established that the petitioner's pleadings disclose that all the alleged violations are under Article 41 of the Constitution, which is legislated under sections 41 and 45 of the Employment Act as procedural fairness. 11.Applying the jurisprudence flowing from the Court of Appeal in Wajir Wasco Limited alias Wajir Water & Sewerage Company & another v Mohamed & 2 others [2024] KECA 937 (KLR) and in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR. , I hold the instant petition does not disclose constitutional violations outside section 41 and 45 of the Employment Act. 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 from employment was on 13th October 2025; thus, the petitioner is within the timeline to file a suit under section 89 of the Employment Act. 12.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 a procedural technicality, to temper justice with mercy, I make no order as to costs. 13.This file is marked as closed. 14.It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026.JEMIMAH KELI,JUDGE.In the presence of:Court Assistant: OtienoPetitioner: Brian OchiengPetitioner/ Respondent: Njiru h/b Kimani Kiragu