Background
1. In the Application dated 10th March, 2026, the Respondent seeks the following order;
a) THAT the court be pleased to refer the matter to the Honourable Chief Justice to empanel a bench of an uneven number of judges to determine the substantial question of law arising in relation to section 45(3) of the Employment Act Cap 226.
b) The costs of this application be in the cause.
2. The supporting Application is anchored on the grounds set out on the face of the application, and the supporting affidavit sworn by Christine Wahome on 11th March 2026.
3. The Claimant /Respondent opposes the application on the basis of the grounds of opposition dated 17th March 2026.
The Application.
4. The Respondent/Applicant states that the Claimant/Respondent was employed for eleven months and nineteen days, and a question arises as to whether her claim for unfair termination can be entertained in light of the stipulations of Section 45[3] of the Employment Act.
5. The Respondent acknowledges that section 45(3) was declared unconstitutional in Momanyi v Attorney General & another [2012] KEHC 5446[KLR], but argues that considerable uncertainty and conflicting judicial opinions remain as to whether the provision is still applicable law.
6. In support of this position, the Respondent cites several decisions that either doubted, declined to follow, or treated section 45(3) as still operative.
7. The Respondent further states that the following decisions have either doubted or failed to follow Momanyi;
a. Nation Media Group Limited v Onesmus Kilonzo [2017] KECA 181 (KLR), where the Court of Appeal held that Momanyi is not binding on judges of the ELRC.
b. Ratemo & 2 others v Dufourg [2025] KECA 1359 (KLR) where the Court of Appeal treated the provision as still in existence.
c. Mercy Njoki Karingithi v Emrald Hotels Resorts & Lodges Ltd [2014] KEELRC 756 (KLR) where Radido J (now JA) did not agree with Momanyi but considered himself bound by it.
d. Danish Jalangó & Amicabre Travel Services Limited (2014) KEELRC 254 (KLR), where Rika J refused to follow the Momanyi case.
e. John Muthomi Mathiu v Mastermind Tobacco (K) Limited [2018] KEELRC 540 (KLR), where Nzioka wa Makau J agreed with Rika J in Danish Jalang'o.
f. Dume V Quality Home Care Services [2023] KEELRC 348 (KLR) where Nzei J did not cite Momanyi but upheld an objection based on section 45(3) of Cap 226.
8. The following decisions have been applied or followed the Momanyi case.
a. Nicholas Otieno v Patco Industries Limited [2013] KEELRC 98 (KLR), where Nzioka wa Makau J agreed with the reasoning in the Momanyi case.
b. Lydia Moraa Obara v Tusker Mattresses Limited [2021] KEELRC 1055 (KLR) where Ocharo J agreed with the reasoning in the Momanyi case.
c. Bhundia v Chandarana Supermarket Ltd & another [2023] KEELRC 726 (KLR), where Gakeri J accepted Momanyi was not binding but agreed with its reasoning.
d. Macharia v Cobra Security Company Limited [2023] KEELRC 164(KLR), where Rika J dismissed an objection because of the Momanyi case .
e. Mutemi v KK Security; Attorney General (Interested Party) [2023] KEELRC 949 (KLR), where Manani J applied Momanyi.
f. Peter Munywoki Nzivo v Nguvu Construction & Mining Company Limited [2022] KEELRC 471 (KLR), where Rutto J applied the Momanyi case.
9. According to the Respondent, the conflicting approaches adopted by different judges of the ELRC, together with the Court of Appeal’s position that the Momanyi case is not binding on the ELRC, demonstrate the existence of a substantial question of law that requires determination by an expanded bench. The Respondent maintains that, in the interests of both employers and employees, it is necessary for the ELRC to definitively pronounce on whether Momanyi should continue to be followed or whether section 45(3) of the Employment Act remains valid law.
10. The Respondent further argues that the inclusion of constitutional claims in the suit does not remove the substantial legal issue arising under section 45(3), and contends that an expanded bench would still be competent to determine the alleged constitutional violations, subject to the limitation imposed by section 45(3) of the Employment Act.
Claimant’s grounds of opposition
11. The Claimant opposes the Respondent’s Notice of Motion dated 10 March 2026 and contends that there is no necessity to empanel an uneven bench of judges to determine the dispute concerning section 45(3) of the Employment Act because the issue has already been settled by the Court of Appeal. The Claimant relies on Gogni Rajope Construction Company Limited & another v Omondi (Civil Appeal 321 of 2019) 2025 KECA 161(KLR) (7 February 2025).
12. The Claimant argues that the appeal in Gogni Rajope arose from a decision of the Employment and Labour Relations Court. The matter of Section 45[3] was canvassed and determined by the Court. The Court of Appeal upheld that decision. The pronouncement by the Court of Appeal constituted the holding of the case rather than obiter dictum.
13. The Claimant further maintains that the Respondent has not produced any Court of Appeal authority expressly holding that section 45(3) of the Employment Act remains in force.
14. The Claimant also disputes the alleged holding in Nation Media Group Limited v Onesmus Kilonzo (2017) KECA 181 (KLR) and argues that, if any conflict truly exists between that holding and the decision in Gogni Rajobe [supra], the matter would properly fall to be determined by the Supreme Court under articles 163(4)(b) and 163(7) of the Constitution rather than by empanelment of an expanded bench of the ELRC.
15. The Claimant further emphasises the doctrine of precedent, arguing that lower courts are bound by decisions of higher courts to promote consistency, stability, and predictability in the law.
Analysis and determination
16. The issue for consideration is whether the Respondent has demonstrated a sufficient foundation to warrant referral of the instant suit to the Honourable Chief Justice for the formation of an uneven bench to adjudicate the issue of the applicability of section 45(3) of the Employment Act.
17. The Respondent’s application is based on the argument that the Claimant served for only eleven months and nineteen days, and that section 45(3) of the Employment Act prevents employees who have not served for a minimum of thirteen months from pursuing claims for unfair termination. The Respondent contends that, although section 45(3) was declared unconstitutional in Momanyi v Attorney General & another, conflicting jurisprudence exists within the ELRC and uncertainty persists following the Court of Appeal decision in Nation Media Group Limited v Onesmus Kilonzo, which held that Momanyi was not binding on judges of the ELRC.
18. Article 165(4) of the Constitution provides for the certification and empanelment of an uneven bench where a matter raises a substantial question of law under Article 165(3)(b) or (d).
19. Section 21 of the Employment and Labour Relations Court Act provides that the Employment and Labour Relations Court is ordinarily constituted by a single judge. However, where the court certifies that a matter raises a substantial question of law under article 165(3)(b) or (d) of the Constitution, the matter must be heard by an uneven bench of at least three judges assigned by the Chief Justice.
20. The Constitution and the statute do not define what constitutes a substantial question of law. In my view, whether a matter constitutes a substantial question of law depends on the circumstances of each case and on the perspective of the individual Judge.
21. In Kirui v Clerk of the County Assembly of Uasin Gishu & another; Independent Electoral and Boundaries Commission (Interested Party) [2023] KEHC 25279 (KLR), the Court held that;
“The Constitution does not, however, define what constitutes 'substantial question of law.’ As was stated in the case of Community Advocacy Awareness Trust & Others vs. The Attorney General & Others, High Court Petition No. 243 of 2011, therefore, it is left to the individual Judge to satisfy himself or herself that the matter is substantial to the extent that it warrants reference to the Chief Justice to appoint an uneven number of judges not being less than three to determine the matter.
It is, however, generally accepted that the decision whether or not to forward a matter to the Chief Justice for empanelling of a bench of more than one Judge ought to be made only where it is absolutely necessary and in strict compliance with the Constitutional and statutory provisions. The need for caution by a Judge before exercising this discretion was reiterated by G.V. Odunga J (as he then was) in Wycliffe Ambetsa Oparanya & 2 others v Director of Public Prosecutions & another (2016) eKLR. While declining an invitation to refer the matter to the Chief Justice for empanelling of an expanded bench, he stated as follows:
“…………… Despite appreciably great strides made in the expansion of the Judiciary in the recent past, there is definitely much more to be done with respect to achieving the spirit of Article 48 of the Constitution on access to justice. Accordingly, this Country still does not enjoy the luxury of granting such orders at the whims of the parties. Judicial resources in terms of judicial officers in this country are still very scarce and although the time taken for hearing a petition by a single judge may not be any different from that taken by a bench empanelled pursuant to Article 165(4) of the Constitution, it must be appreciated that the empanelling of such a bench invariably leads to delays in determining cases already in the queue hence worsening the backlog crisis in this country ……………..””
22. The Respondent has indeed demonstrated that there have been differing approaches by judges of the ELRC on the applicability of section 45(3) of the Employment Act after the decision in Momanyi. However, I have keenly considered the Court of Appeal decision in Gogni Rajope [supra], and not the Court’s holding on the matter Section 45[3] of the Employment Act, thus;
“32 Section 45[3] of the Act remains a live issue at the Employment and Labour Relations Court [ELRC], and seems not to have received consensus fully. The issue has not been seriously canvassed before this Court. The High Court extensively discussed the application of the section in the much -cited case of Samuel Momanyi v Attorney General & Another [2012] eKLR[ the Momanyi case], where the High Court declared section 45[3] of the Act unconstitutional. ………………………
34. The Employment Act is seen as a reformist document that moved away from the common law position that deemed the employer/employee relationship to be on equal pedestal, to a more realistic position, where one party [the employer] would set terms and conditions. The Act embraced good labour practices. Therefore, section 45[3] of the Act does appear misplaced and not in tandem with other sections of the Act. It is not in consonance with the current legal regime in Kenya today. We also recognise that the Employment Act came into being 3 years before the Constitution 2010 and may not be entirely in line with the Constitution. Article 2[4] of the Constitution stipulates that any law, including customary law, inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
36………………we have found that the appellants cannot find recourse in section 45[3] of the Act. The same is not aligned with the best labour practices and is against the various Articles of the Constitution, and was so declared by the High Court.”
23. The Court of Appeal unequivocally stated that there is no consensus regarding the applicability and constitutionality of Section 45[3] of the Employment Act by the Employment and Labour Relations Court. The Momanyi case declared the provision unconstitutional with well-founded reasons. The decision in the Momanyi case constitutes good law and has been upheld.
24. By reason of the foregoing, and in light of the importance of the doctrine of stare decisis, this Court would have no reason to hold that there remains uncertainty as to the applicability and constitutionality of Section 45[3] of the Employment Act. It is unconstitutional and so remains unless an appropriate forum declares otherwise.
25. For now, there is nothing left that an expanded bench can consider and render itself on in matters Section 45[3] of the Act. The application lacks merit. It is hereby dismissed.
Read, Signed and Delivered this 28th Day of May 2026.
Ocharo Kebira
Judge