The ruling herein relates to the Notice of Preliminary Objections filed by the 1st respondent dated 2 May 2025, on the grounds:
- The petition offends the mandatory provisions of section 44(4), 3B and 3C of the County Governments Act.
- A litigant should not avoid the provisions of the Employment Act regarding unfair termination or wrongful dismissal by going behind the statute and seeking to rely directly on article 41 of the constitution on the fight against unfair labour practices. The purpose of the constitution is that the fifth fair labour practices is given effect in various statutes, of which the Employment Act and the Labour Relations Act are primary. The primary legislation should not be circumvented by seeking to rely directly on a constitutional provision.
- The court is divested of jurisdiction to hear and determination the application in the first instance by the doctrine of exhaustion.
The parties attended and agreed to address the objections raised by the 1st respondent through written submissions.
The 1st respondent submitted that section 44 of the County Governments Act (CGA) provides for the establishment of the office of the county secretary. Section 44 (2A) of CGA provides that the Governor should constitute a selection panel for the recruitment of the county secretary. Upon identifying the nominees for the position, the County Assembly appoints the officer, not the County Public Service Board.
On 11 September 2023, the petitioner was appointed to the position of County Secretary. Through a letter dated 3 April 2025, the 1st respondent expressed an intention to remove the petitioner from office on the grounds of gross misconduct and violation of the constitution as required under section 44(3C) of the CGA. He was then directed to hand over his duties to the CEC, Public Works, Roads and Transport, Hon. Catherine Kenga. Instead, the petitioner sought to access his office forcefully, and the matter is under criminal investigation by the police.
He has since refused to hand over or return property under his custody that belongs to the County Government of Kilifi.
The 1st respondent submitted that the instant petition does not raise any constitutional matter. It is a simple claim for compensation arising from an alleged breach of an employment contract. The petition does not raise any question for the interpretation or application of the Constitution.
Based on the pleadings, where legislation has been enacted to give effect to a constitutional right, it is not permissible to base a cause of action directly on the constitution, as held in Ouma v County Government of Kisumu & 2 Others, Petition E011 of 2023. The petition, as couched, which challenges the 1st respondent's action of directing the petitioner to address acts of gross misconduct while performing his duties, is not a constitutional issue and is a legal imperative under Section 44 of the CGA.
Where a statute establishes a dispute resolution mechanism, such a mechanism should be applied before invoking court jurisdiction, as held in Francis Gitau Parsimei & 2 others v National Alliance Party & 4 others [2012] eKLR.
In this regard, the court lacks jurisdiction to hear the petition due to the petitioner's failure to exhaust the principle. In Republic v National Environment Management Authority ex parte Sound Equipment Ltd [2011] eKLR, the court held that where an alternative remedy is provided under the law, it is only in exceptional circumstances that the judicial route should be invoked. In this case, the petitioner has not cited any outstanding circumstances for moving the court under the petition, despite being aware of the provisions under Section 44 of the CGA.
The 1st respondent submitted that the petitioner has come to court with unclean hands. He has failed to disclose that he continues to receive a salary from the County Government of Kilifi, along with benefits. He is still an employee of the County Government of Kilifi.
On this basis, the court should not entertain the petition, as Section 44(3A), (3B), and (3C) of the CGA provide a dispute resolution mechanism for addressing the termination of employment for county secretaries. The jurisdiction of the court, as a first-instance court, is ousted under the doctrine of exhaustion and constitutional avoidance.
Determination
Through a petition dated 9 April 2025, the petitioner is seeking various remedies, including a declaration that the letter dated 3 April 2025 terminating the contract of employment be deemed illegal. The termination of employment notice, dated 3 April 2025, also directed him to proceed on indefinite leave. The petitioner hence challenges the decision by the respondents as being contrary to Article 41 of the Constitution and Sections 41 and 43 of the Employment Act, which he argues are unlawful and unfair. He is seeking an order of reinstatement.
In the written submissions, the 1st respondent has accused the petitioner of material non-disclosure. That he has failed to disclose that he is still employed by the County Government of Kilifi, earning a salary and benefits.
For the petition, the 1st respondent raises two related issues regarding the court's jurisdiction, based on the doctrines of exhaustion and constitutional avoidance.
Based on the remedies sought, an order of reinstatement is regulated under Section 49 of the Employment Act, read with Section 12(3) of the Employment and Labour Relations Court Act. The petitioner also seeks to address the alleged violation of his rights under Article 41 of the Constitution and sections 41 and 43 of the Employment Act. Under Rule 10 (3) of the Employment and Labour Relations Court (Procedure) Rules, a party is allowed to file a Memorandum of Claim and urge a claim for;
(3) Notwithstanding anything contained in this rule, a p er so n m ay
seek the enforcement of any constitutional right and freedom or any
Constitutional provision in a statement of claim or other sui t f i led bef ore
The Court.
The Court of Appeal in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR, 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.
The objections raised by the 1st respondent regarding constitutional avoidance suggest that a court will refrain from determining a constitutional issue if the matter can be correctly decided on a different basis. In Awino v Noor; Ethics & Anti-Corruption Commission (Interested Party) (Petition E194 of 2024) [2025] KEHC, and in Gabriel Mutava, Elizabeth Kwini & Mary Martha Masyuki v Managing Director Kenya Ports Authority & Kenya Ports Authority [2016] KECA 411 (KLR), the courts have held that where it is possible to decide a case without addressing a constitutional question, that approach should be taken.
Furthermore, under the exhaustion doctrine, it aims to ensure the postponement of judicial intervention, allowing a party to first demonstrate diligence in protecting their interests through mechanisms for resolution outside the courts, aligning with Article 159 of the Constitution, which encourages alternative dispute resolution methods. However, the doctrine is not inflexible. There may be instances where applying the doctrine would conflict with the values enshrined in the Constitution or law, and in such cases, a party may be justified in directly approaching the court, as held in Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] KECA 305 (KLR) and United Millers Limited v Kenya Bureau of Standards & 5 others [2021] KECA 1024 (KLR).
In this case, the petitioner has challenged the notice dated 3 April 2025 issued by the 1st respondent because it terminated his employment as court secretary. The 1st respondent contends that under sections 44(3A), (3B), and (3C) of the CGA, the petitioner has exhausted the dispute resolution mechanism provided therein. However, the court's interpretation of the cited provisions does not relate to the stated doctrine.
The challenge involves the reputed unlawful and unfair dismissal; were it not for the oversight in applying the doctrine of constitutional avoidance, the petitioner would be before the correct court.
On this basis, the reliefs sought by the petitioner herein are provided for under the Employment Act and the Employment and Labour Relations Court Act, which ought to have been raised under a memorandum of claim. Invoking the constitutional petition route is not necessary. There is no matter anchored under the constitution, making the petition incompetent, and it is hereby struck out. Costs to the 1st respondent.
Delivered in open court at Mombasa, this 24th day of July 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
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