Court Declares Section 45(3) Of The Employment Act Unconstitutional

Samuel G. Momanyi v The Hon. Attorney General & Another

High Court, Constitutional and Human Rights Division

Petition No. 341 OF 2011

Lenaola J.

May 18, 2012.

Samuel Momanyi was employed by the SDV Transami Kenya Ltd as a Project Manager where he had served with dedication and diligence until his services were terminated without being heard and without any lawful reasons being given for that action. He admitted that his employment contract provided that any dispute between the parties would have been referred to arbitration but that he had filed a claim before the Industrial Court which claim was struck off under Section 45(3) of the employment Act 2007 as he had only worked for 11 months and 27 days with Transami. The Industrial Court had ruled that Samuel had no lawful basis for claiming that he had been unfairly terminated but he argued that inspite of that ruling, he was entitled to remedies under the constitution because his rights and freedoms had been violated by his employer.

He therefore appealed to the High Court and prayed for a declaration that his right to fair labour practices under Article 41(1) of the Constitution had been violated by his employer because he was not accorded a fair opportunity to be heard on the allegations resulting in the termination of his employment and that section 45(3) of the Employment Act was inconsistent with the provisions of the Constitution of Kenya particularly Articles 28, 41 (1), 47,48 and 50 (1). He therefore asked that an order be issued declaring section 45(3) of the Employment Act invalid by reason of its violation of the rights and fundamental freedoms and the said ruling be reviewed and set aside.

However, Transami denied that Samuel was diligent in his duties and that the termination of his employment was lawful and warranted. Counsel submitted that Samuel was given an opportunity to explain his lackluster performance prior to the termination and after a meeting which he attended, it was decided that he lacked the capability to perform the functions entrusted to him and he was given reasons why his continued employment was no longer tenable

Various issues emerged during the hearing among them being whether the termination of the petitioner’s employment was in breach of Article 41(1) of the Constitution on the right to fair labour practices. The court considered whether it was properly seized of the matter in the circumstances given that Article 162 (2) (a) of the Constitution had created a court (Industrial Court) with the status of the High Court to determine disputes relating to employment and labour relations. However, the High Court observed that only itself could have determined whether any statute or parts of it were in conflict with the Constitution and that being the case, it was properly seized of the matter.

Samuel had also argued that section 45(3) was in conflict with Articles 48 and 50 (1) of the Constitution which guaranteed the rights to access justice and the right to a fair hearing. It was his argument that it was discriminatory of certain kinds of employees and that only those who had served for over 13 months could have claimed for unfair termination of their services.

Justice Lenaola observed that the Employment Act was enacted in 2007 before the enactment of the 2010 Constitution of Kenya and therefore there was need to align the provisions of all statutes enacted prior to it with the said Constitution. The Judge held that in lieu of Articles 27 and 48 of the Constitution which guaranteed equality and freedom from discrimination and the right to access to justice, there was obvious discrimination and the Samuel had been denied equal protection and equal benefit of the law.

The Judge observed that no explanation had been given by either Transami or the Attorney General as to why a person who had worked for one year and one month was the only one who could have claimed that his employment had been unfairly terminated and that one who had worked for a lesser period could not have had the benefit of that claim. Judge Lenaola relied on Cradle V Attorney General [2006] eKLR where it was stated that when considering whether a section of the law was discriminatory, the court must have taken into account the history and Social Economic context of the legislation, in other words, the environment in which the legislature had enacted the statute. The Judge therefore found that the repealed Constitution did not have as much a robust bill of rights as the Constitution 2010 and there was need for all laws to conform to it. The Judge further observed that the objects of the preamble of the Employment Act 2007 could not have been met when section 45(3) of the same Act was left to stand in our statute books.

In considering what circumstances a court could have declared a law to have been unconstitutional, Judge Lenaola held that section 45(3) was unreasonable and had the opposite of what the object of the Employment Act was intended to be. The Industrial Court had labored to show that the applicant would have otherwise been heard on his claim but for the barrier created by section 45(3). Judge Lenaola thus observed that the law was oppressive and the Industrial Court’s hands were tied and therefore upheld the Constitution and declared section 45(3) invalid to the extent of its consistency.

Samuel had also prayed for the court to declare the ruling by the industrial Court to have been in breach of the petitioner’s rights under the constitution. The judge held that the matter was moot because once he had declared that section 45(3) was unconstitutional, certain consequential orders had to have followed with regard to the proceedings before the industrial court.

However, Judge Lenaola considered the issue whether the High Court could have directed the industrial Court given that a court established under Article 162 of the Constitution had the same status as the High Court. He found that only the High Court could have interpreted the constitutionality or otherwise of any statute or its provisions. He relied on Brookside Dairy Ltd v Attorney General, Petition no. 33 of 2011 and agreed with Justice Majanja that the Industrial Court as a creature of statute was a court subordinate to the High Court and that parliament had no constitutional authority under the former Constitution to create a court of equivalent status with the High Court.

Regarding compensation for the alleged violation of his constitutional rights, the Judge did not make any award for reasons that neither Transami, nor the Attorney General could have been found to have deliberately acted to create the impugned section 45(3) and therefore to penalize either of them would have been unfair. The Judge further found that he had jurisdiction to issue orders directed at the Industrial Court without breaching Article 165(6) of the Constitution because the industrial Court was not a superior court as defined by Article 162 (1) of the Constitution.

Judge Lenaola therefore declared and issued an order stating that section 45(3) of the Employment Act 2007 was inconsistent with the provisions of the Constitution of Kenya particularly Articles 28,41 (1), 47, 48 and 50(1) as the said section purported to deny the petitioner the rights and freedoms enshrined in the said Articles of the Constitution.