Applying the doctrine of constitutional avoidance in employment claims. Why ordinary employment disputes should not be elevated to constitutional claims.

Introduction

In Kuria v Aga Khan University (ELRC Nairobi, Cause No. E361 of 2022, Judgment delivered on 30 January 2026), the Employment and Labour Relations Court considered a claim framed as constructive dismissal to­gether with alleged violations of constitutional rights.
We had the opportunity to defend Aga Khan University in this matter. The matter was conducted by Irene Kashindi, FCIArb and Mellap Wataka Odada.

The Court treated the matter as an ordinary employment dispute and, on a preponderance of evidence, found that constructive dismissal had not been proved. The claimant declined a transfer he regarded as a promotion, sought to dictate the terms of that transfer, and purported to resign in the midst of disci­plinary proceedings. The Court held that an employee does not have the right to dictate managerial decisions and noted that the claimant never took up the assignment to demonstrate that it en­tailed additional responsibili­ties as alleged.

Crucially, the Court was not satisfied that any constitu­tional rights had been violat­ed so as to warrant elevating what was, on the face of it, a simple employment dispute into a constitutional question.

The Court reiterated that where complaints are ade­quately catered for by the employment contract and the Employment Act, constitu­tional remedies should not be entertained, consistent with the doctrine of constitutional avoidance. The court upheld the termination as having been grounded on valid rea­sons of insubordination and absconding duty, and as having followed a fair proce­dure.

Read the full judgement here:
https://bit.ly/4xxPSBu

For more information on this please contact our team on nairobi@mmkadvocates.co.ke