[2017] KEHC 663 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

PETITION NO. 46 OF 2016

IN THE MATTER OF: ARTICLES 2, 19(2), 20(1), 23(1) (3) (a)(b)(c)(d) 7 (f). 27, 47, 48, 56, 165(3)(b)(d)(i) & (4) 237, 258 and 259 OF THE CONSTUTITUTION OF KENYA 2010

AND

IN THE MATTER OF: PETITION AMOS OLEMPAKA CHALLENGING THE CONTRAVENTION AND INFRINGEMENT OF THE CONSTITUTION

BETWEEN

AMOS OLE MPAKA ..................... PETITIONER

VERSUS

TEACHERS SERVICE COMMISSION .............. RESPONDENT

JUDGMENT

By way of the petition dated 20th September, 2016 one AMOS OLE MPAKA (the petitioner herein) sought to challenge the process of recruitment of teachers by the TEACHERS SERVICE COMMISSION (the Respondent herein) and more particularly the petitioner sought to enforce Article 56(c) of the Constitution. The said constitutional provision provides as follows

“56 The State shall put in place affirmative action programmes designed to ensure that minorities and marginalized groups:-

(a) ………………………..

(b) ………………………..

(c) Are provided special opportunities for access to employment

(d) ………………………”

The petitioner argued that during its recruitment process the Respondent contravened Article 56(1) by failing to set aside slots specifically for members of the Ilcahmus Community who he alleges are a minority community who are entitled to benefit from this constitutional provision.

The petitioner therefore prayed that the Respondent be compelled to consider and give priority to the interests of the members of the Ilchamus Community, and sought orders to restrain the Respondent from gazetting the qualified candidates until it has so complied.

Simultaneously with this petition, the petitioner filed a Notice of Motion dated 20th September, 2016 seeking conservatory orders to suspend the appointment and/or gazettement of teachers by the Respondent pending the hearing and determination of this petition.

On their part the Respondent filed the Preliminary Objection dated 5/10/2016 challenging the jurisdiction of this court to hear and determine the matter. It is that Preliminary Objection which is now before the court for determination. Following the directions given by court the matter was canvassed by way of written submissions.

MR. OYUCHO TIMON who acted for the Respondent relied upon his written submissions dated 6/10/2016. He submitted that the gist of the petition involved an allegation that the Respondent had violated the rights of qualified teachers from the Ilchamus Community, who had applied to be its employees, by failing to invoke Article 56(3) of the Constitution. As such counsel for the Respondent submitted that these applicants from the Ilchamus Community were ‘prospective employees’ of the Respondent and as such Section 5(3) of the Employment Act would apply.

It was submitted that the above provisions make the substance of this petition an Employment and Labour Relation matter which ought to be placed before the Employments and Labour Relations Court for determination, as this was the court vested with the requisite jurisdiction over the matter. In RE: THE MATTER OF THE INTERIM INDEPENDENT ELECTORAL COMMISSION [2011]eKLR, it was held that a court can only exercise that jurisdiction which has been conferred on it by law. Article 165(5) (b) of the Constitution of Kenya sets out clearly the jurisdiction of the High Court to determine matters relating to employment.

MR. SAENDEAdvocate for the petitioner opposed the preliminary objection. He submitted that the petitioner is only seeking to enforce his fundamental rights under Article 27 of the Constitution which this court has jurisdiction to determine. Counsel further argued that there exists no employment relationship between the petitioner and the Respondent thus Article 162(2) (a) of the Constitution as read together with Section 12 of the Employment and Labour Relations Act would not apply. Counsel submitted that the matter falls squarely with the jurisdiction of this court.

ANALYSIS AND DETERMINATION

The only issue for determination in this Preliminary Objection is whether this court has the requisite jurisdiction to determine the matters raised in the petition dated 20/9/2016. A look at the constitutional provisions relating to the jurisdiction of the High Court is necessary in order to conclusively answer this question.

Article 165(3)(b) of the Constitution of Kenya 2010 sets out the areas over which the High Court does have jurisdiction. Article 165(5) (b) units the jurisdiction of the High Court in the following terms:-

“(5) The High Court shall not have jurisdiction in respect of matters ……

(a) Reserved for the exclusive jurisdiction of the Supreme Court under this constitution or

(b) Falling within the jurisdiction of the courts contemplated in Article 162(2)”(Own emphasis).

Article 162(2) provides that

“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to:-

(a) Employment and labour relations and

(b) The environment and the use and occupation of and title to land….”

Therefore by dint of Article 162(2) of the Constitution, the court which has proper jurisdiction to hear and determine such disputes is the Employment and Labour Relations Court.

The courts have severally held that the jurisdiction of the Environment and Labour Relations Court also includes the jurisdiction over Violations of the Bill of Rights.

Section 12(1) of the Employment and Labour Relations Act provides

”It follows that where the core of the dispute falls within matters contemplated by Section 12(1) of this Employment and Labour Relations Act, then that matter must be referred to the Employment and Labour Relations Court for determination”.

In USIU Vs ATTORNEY GENERAL [2012]eKLR my learned brother Hon. Justice Majanja held as follows:-

“……..In light of what I have stated, I find and hold that the Industrial Court as constituted under the Industrial Court Act 2011 as a court with equal states of the High Court is competent to interpret the constitution and enforce matters relating to breach of fundamental rights and freedoms in matters arising from disputes falling within the provisions of Section 12 of the Industrial Court Act 2011”.

Similarly in JUDICIAL SERVICE COMMISSION Vs GLADYS BOSS SHOLLEI & ANOTHER 2014eKLR, the Court of Appeal held that the powers to enforce the Bill of Rights is not vested exclusively in the High Court. In cases where an issue concerning infringement of rights arises within a dispute which falls within the jurisdiction of the Employment and Labour Relations Court, then that is the court which is vested with jurisdiction to hear and determine the matter.

In this petition the petitioner sought to have members of the Ilchamus Community given special treatment by the Respondent during the process of recruitment of teachers. He prayed for orders to compel the Respondent to set aside slots only for applicants from the Ilchamus Community. The petitioner argued that such preferential treatment on the basis of tribe was sanctioned and mandated by Article 56(c) of the Constitution which calls for the state to apply affirmative action for members of minorities and marginalized communities.

This argument must be considered as against Article 27 of the Constitution which guarantees the right to equality and freedom from discrimination together with Section 5 of the Employment Act 2014 which prohibits discrimination in employment Section 5(2) and (3) of the employment Act provides that

“5(3) provides:-

No employer shall discriminate directly or indirectly, against an employee or prospective employee

(a) On grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status

(b) In terms of recruitmenttraining, promotion, terms and conditions of employment, termination of employment or other matters arising out of employment”(my own emphasis)

It is clear from this provision of the law that the question of discrimination in the recruitment process is an employment dispute and one which falls under the Employment Act. Although the petitioner is not as yet an employee of the Respondent, the provisions of Section (5) nevertheless apply to him as Section 5 Subsection (8) extends the definition of an employee to cover a ‘prospective employee’. An employee is defined for the purposes of Section 8 to include ‘an applicant for employment’.

Based on the foregoing I find this is a matter which ought to be determined by the Employment and Labour Relations Court. This Preliminary Objection has merit and I hereby allow the same. This petition is struck out for want of jurisdiction and the costs are awarded to the respondent.

Dated in Nakuru this 3rd day of October, 2017.

Mr. Maragia holding brief for applicant.

Mr. Mongeri holding brief for Respondent

Maureen A. Odero

Judge