REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MOMBASA
PETITION NO.E005 OF 2024
JULIUS MATUSIA OKINDO …………………………………………..….. PETITIONER
VERSUS
KENYA MARITIME AUTHORITY ………………………………….…. RESPONDENT
RULING
The ruling herein relates to a Notice of Preliminary Objections filed by the respondent, Kenya Maritime Authority dated 8 July 2024 and seeking the dismissal and or striking with costs the entire petitioner’s petition and application dated 5 June 2024 in limine on the basis;
The petition offends the doctrine of constitutional avoidance.
Both parties attended and agreed to address the objections by way of oral submissions and also filed skeleton written submissions.
The respondent submitted that the petitioner filed this petition alleging that he joined the respondent as a legal assistant on 7 June 2006, he upgraded his skills and on 25 September 2017, he requested a secondment to Lamu County which was approved. He resumed his duties with the respondent on 30 September 2019 but alleges that he was discriminated against by being placed in a lower job group. The petition is also that on 8 March 2021, the petitioner applied to be placed in the human resources department which was not done. He applied for the position of principal human resource officer attended interviews and performed very well but was not appointed. The position of human resource officer talent management was advertised on 5 December 2023, the petitioner applied but was not shortlisted. He has thus challenged the failure to be shortlisted and not being given the reasons. He is seeking various declarations from the petitioner to be placed in the correct job group, to be promoted, to be paid back salaries and an order of injunction stopping the appointment of the human resource officer.
The respondent submitted that the petition is filed contrary to the principles of constitutional avoidance as enunciated by the Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 other Petition 14A, 14B and 14C of 2014. The court held that the principle of constitutional avoidance entails that a court will not determine a constitutional issue, when a matter may properly be decided on another basis.
In the case of Southlake Panorama Limited v Kenya Electricity Transmission Company Limited & 3 others [2021] eKLR, the court held that the constitutional jurisdiction of the court is a very specific jurisdiction which is not open to general claims. In the case of John Harum Mwau v Peter Gastrow & 3 others [2014] eKLR the court held that courts will not normally consider a constitutional question unless the existence of a remedy depends on it. If a remedy is available to an applicant under some other legislative provision, such should be applied.
The effect of the doctrine of constitutional avoidance is that where there are adequate statutory avenues for the resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain the dispute. In the case of Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR the court held that where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to find a cause of action directly on the constitution without challenging the legislation in question.
In this case, the issues raised by the petitioner can well be addressed under the Employment Act without invoking the constitutional petition route. In the case of Lemita Ole Lemein v Attorney General & 2 others [2020] eKLR the Court of Appeal held that it is impermissible that the court should lightly endorse and reward the constitutionalization of ordinary legal disputes that are amenable to settlement through ordinary civil processes.
The respondent submitted that in this case, the petition has improperly invoked the constitution and the petition should be dismissed and or struck out with costs.
The petitioner submitted that he filed this petitioner under the provisions of Article 22, 27, 47, and 41 of the Constitution seeking to enforce his constitutional rights that have been violated and infringed by the respondent. The contention by the respondent that there should be constitutional avoidance does not apply as the petition is properly articulated in terms of the constitutional violations by the respondent against the petitioner.
The petitioner submitted that the principles of constitutional avoidance are addressed in the case of Royal Media Services Ltd v Attorney General & 6 others [2015] eKLR that the court has jurisdiction to hear constitutional petitions and give remedies as herein sought by the petitioner. In the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR the 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.
The issues raised by the petitioner cannot be raised through the internal grievance procedures of the respondent by application of the Human Resource and Procedure Manual, 2020. The doctrine of constitutional avoidance does not divest this court of the jurisdiction to head and determine this matter and what it means is that while this court can indeed hear the petition, it restrains itself from hearing the same because there is another appropriate forum. The forum proposed by the respondent is the internal dispute resolution mechanism but such would entail delay and uncertainty and the same cannot address the constitutional questions addressed in this petition. Such a forum is not appropriate. In the case of Nicholas v Attorney General & 7 Others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] eKLR the Supreme Court held that where alternative mechanisms in resolving disputes are not adequate or effective, nothing prevents a party from filing a petition in court. In the case of the County Government of Garissa & another v Idriss Aden Mukhtar & 2 others [2020] eKLR the Court of Appeal held that this court had jurisdiction to hear constitutional petitions. This position is reiterated in the case of Sabana v County Government of Kakamega & 2 others [2023] eKLR. The petitioner is properly before this court and the petitioner should be heard on the merits. Objections raised should be dismissed with costs.
Determination
The single issue raised by the respondent is whether the petition offends the doctrine of constitutional avoidance.
The doctrine of Constitutional Avoidance is well addressed by the Supreme Court in the case of Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR. The doctrine is that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion. The 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.
…
The doctrine of constitutional avoidance, therefore, deals with instances where a Constitutional Court will decline to deal with a matter because there exists another remedy provided in law that the aggrieved party is yet to utilize.
This position is reaffirmed in the case of KKB v SCM & 5 others [Constitutional Petition 014 of 2020] [2022[eKLR that;
Constitutional avoidance has been defined as a preference for deciding a case on any basis other than one which involves a constitutional issue being resolved. As a principle, constitutional avoidance has been linked to the doctrine of justiciability. In broad terms, justiciability governs the limitations on the constitutional arguments that the court will entertain. …
Concerning employment claims, the Court of Appeal in the case of Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR held that the right to fair labour practices is part of the human rights secured by the Bill of Rights under Article 19 of the Constitution and the legislature has enacted the Employment Act to secure such rights. By application of the Employment Act, the court has the jurisdiction to “declare and define the fundamental rights of employees”. The court then held that;
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. …
Therefore, where there are no challenges to the law securing employment rights for an employee or employer, and which should be declared as unconstitutional, a party should avoid the constitutional petition route. The principle is that where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to find a cause of action directly on the Constitution without challenging the legislation in question.
Indeed, under the Employment and Labour Relations Court (Procedure) Rules, a party is allowed to urge his cause through a Memorandum of Claim and claim any rights violations. Under Rule 7(3) of the Employment and Labour Relations Court (Procedure) Rules, a party is allowed to lodge a claim and assert his constitutional rights. See Jane Angila Obando v Teachers Service Commission & 2 others [2020] eKLR.
Unless the petitioner is challenging the application of a statute as being unconstitutional or requiring a review or repeal, a party should avoid the invocation of a constitutional petition.
The petition herein raises general questions in employment and does not address any statutory provisions as being unconstitutional. The orders sought in the petition are well addressed and can well be covered under a Memorandum of Claim. Invoking the constitutional petition route is unnecessary.
Objections by the respondent that the petition offends the doctrine of constitutional avoidance are with merit. Objections are hereby allowed. The petition is hereby struck out. Each party bears its costs.
Delivered in open court at Mombasa this 30 day of September 2024.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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