REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
ELRC PETITION NO E031 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
MICHAEL ANGATIA LWILE……………………………….. PETITIONER
VERSUS
SONGHONG FREIGHT SERVICES LIMITED……….. RESPONDENT
RULING
The Petitioner filed the instant suit on 3rd November 2025, seeking various declarations including withholding of salary for August 2025, or refused to pay and issuance of termination notice. Other reliefs sought include compensation for violation of constitutional rights, 12 months compensations, salary in lieu of notice, service pay, unpaid leave, certificate of service, costs and interest.
The Respondent’s counsel filed a Notice of Appointment dated 6th February, 2026 together with a Notice of Preliminary Objection dated 18th February 2026 on 18th February, 2026.
The Respondent contends that;
1. The Petition herein is an ordinary employment dispute disguised as a constitutional Petition and offended the doctrine of Constitutional Avoidance as held in Communications Commission of Kenya & 3 others v Royal Media Services Ltd & 5 others (2014) eKLR.
2. That the grievances raised are provided for by the Employment Act.
3. The Petition offended the doctrine of exhaustion as held in Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another (2016) eKLR.
4. The Petitioner has failed to show how the cited provisions of the Constitution of Kenya were violated and the Petition was an attempt to circumvent the standard procedure of filing a claim. Moreover, the reliefs sought were statutory.
5. The Petition is incompetent fatally defective and ought to be struck out.
I have considered the submissions by counsel though filed late.
It is trite law that whenever a Preliminary Objection is raised in proceedings, it ought to be disposed of at the earliest opportunity owing to its potential to dispose of the suit at that stage.
Concerning the threshold of a Preliminary Objection, the often-cited sentiments of Law JA and Sir Charles Newbold P in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) E A 696 are worth recapitulating. Law JA stated:
“…A preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a Preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”
Sir Charles Newbold P. added:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
Based on the grounds relied upon by the Respondent the court is satisfied that the Notice of Preliminary Objection meets the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (Supra).
As regards the doctrine of exhaustion of remedies, the court is not persuaded that it is relevant in this instance. This is because in the general scheme of things based on the relevant statutory framework and judicial decisions, the doctrine of exhaustion is concerned with internal dispute resolution mechanisms otherwise than by a court of law. It addresses, jurisdiction of other statutorily prescribed bodies and exhausting their processes before invoking the jurisdiction of the court.
The foregoing is fortified by the sentiments of the Supreme Court of Kenya in Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others (2019) KESC 83 (KLR) thus:
“In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with erroneous intention of attracting the jurisdiction of superior courts is not a substitute of known legal procedures. Even where superior courts had jurisdiction to determine profound a question of law the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.”
See also Speaker of the National Assembly v Njenga Karume (1992) eKLR; Geoffrey Muthinja Kabiru & 2 otheres v Samuel Henry Muguna & 1756 others (2015) eKLR; William Odhaimbo Ramogi & 3 others v Attorney General & 4 others (2020) eKLR and Wajir Wasco Ltd Alias Wajir Water & Sewerage Company & another v Abdi Jikre Mohamed & 3 others (2024) KECA 937 (KLR) among others.
Clearly, the doctrine of exhaustion of remedies is concerned with remedies obtainable by an aggrieved party before invoking the jurisdiction of the court.
Nothing turns on this issue.
Concerning constitutional avoidance, a constitutional Petition generally presupposes that the litigant has a constitutional issue before the court.
In Wajir Wasco alias Wajir Water & Sewerage Co. Ltd & another v Mohammed & 2 others (Supra), the Court of Appeal expressed itself as follows:
“We are alive to the fact that every case has a constitutional underpinning, be it criminal, civil or commercial. However, it is important to pint out that not every dispute ought to be brought as a 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 case can 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 Weslling Club and another 2001 (2) 2LR 501(S) in the following passage:
“…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 same 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”
Similarly, in Wajir Wasco alias Wajir Water & Sewerage Co. & another v Mohamed & 2 others (Supra) the Court of Appeal state:
“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 slated in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (2014) eKLR (at para 256) that principle of avoidance means that a court will not determine a constitutional issue when a matter may properly be decided on another basis.”
In the court’s understanding, the doctrine of constitutional avoidance is grounded on the basis on which a matter will be resolved as opposed to the court’s jurisdiction.
“…courts are generally ……………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.”
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.”
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 state in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (2014) eKLR at paragraph 256, the principles of avoidance means that a court will not determine a constitutional issue when a matter may properly be decided on another basis.”
Finally, in Luka Chebii Mitei v National Social Security Fund Board of Trustees (2022) KECA 974 (KLR), the Court of Appeal held:
“There is also some merit in the argument raised by the Respondent that the action brought by the Appellant in the Petition (namely reinstatement, or payment of Kshs.3.7 million comprising service pay, 3 months’ notice, unpaid salary increments, pension benefits and 12 months damages for unfair termination) are remedies that are only available under section 49 of the Employment Act and pursuant to the limitation period imposed under section 90 of the Act…”
These sentiments apply on all fours to the facts of the instant Petition.
The foregoing position is fortified by the decision in Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another (Supra) where the court expressed itself as follows;
“Time and again it has been said that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum. Such party ought to seek redress under such other legal regime rather than trivialize Constitutional litigation.”
Shucked off the legalese, the dispute between the Petitioner and the Respondent is an employment matter where the Petitioner is alleging constructive dismissal from employment.
Evidently, the instant Petition could have been effectively litigated as an ordinary cause or claim.
The foregoing finding notwithstanding, the court is satisfied that striking out the Petition would be a draconian step as it would necessitate the filing of a claim in the relevant Division of the Court which will occasion delay and additional cost and the court has jurisdiction to hear and determine the Petition.
In the courts view, the scale of justice is tilted in favour of the Court hearing and determining the suit as it is.
In the upshot, the Respondent’s Notice of Motion dated 3rd November, 2026 is disallowed with no Orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30TH DAY OF APRIL, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
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