[2019] KEELRC 83 (KLR)
The court declined to grant interim or conservatory orders because its jurisdiction to hear the matter was challenged by the respondent, and it would be improper to grant such orders before resolving the jurisdictional question. The court held that acting without jurisdiction would render any orders made null and...
Source-derived case information.
- Citation
- [2019] KEELRC 83 (KLR)
- Parties
- Applicant: County Assembly of Embu; Respondent: Embu County Public Service Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Petition 9 of 2019
- Procedural Posture
- Constitutional Petition / Interlocutory Application; Ruling on Interim Relief and Preliminary Objection
- Outcome
- Interim relief declined; directions issued for hearing of preliminary objection.
- Judges
- AN Makau
- Legal Topics
- Jurisdiction of Employment and Labour Court, Interlocutory Orders, Public Service Recruitment, County Government Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
County Assembly of Embu
Applicant
Embu County Public Service Board
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application; Ruling on Interim Relief and Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to grant interim relief in the face of a preliminary objection on jurisdiction.
- 2 Whether interlocutory or conservatory orders should be granted pending determination of jurisdiction.
- 3 Whether the applicant should first appeal to the Public Service Commission under Section 77(2) of the County Governments Act.
Ratio Decidendi
The court declined to grant interim or conservatory orders because its jurisdiction to hear the matter was challenged by the respondent, and it would be improper to grant such orders before resolving the jurisdictional question. The court held that acting without jurisdiction would render any orders made null and void. The matter was set down for hearing on the preliminary objection regarding jurisdiction, and directions were given for the applicant to respond to the objection within 21 days.
Court Disposition
Interim relief declined; directions issued for hearing of preliminary objection.
Orders
- No interim or conservatory orders granted at this stage.
- The respondent's preliminary objection to be heard at Meru Law Courts on 30th January 2020.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS
COURT OF KENYA AT NYERI
PETITION NO. 9 OF 2019
IN THE MATTER OF: ARTICLES 2, 3, 10, 23, 47, 183, 185, 207, 235, 258, 259 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: SECTIONS 58, 59, 60 AND 61 OF THE COUNTY GOVERNMENTS ACT, 2012 AND SECTION 130-149 OF THE PUBLIC FINANCE MANAGEMENT ACT, 2012
AND
IN THE MATTER OF: ADVERTISEMENT FOR POSITIONS IN THE COUNTY PUBLIC SERVICE WITHOUT APPROVAL BY THE COUNTY ASSEMBLY AND WITHOUT BUDGETARY PROVISION
AND
IN THE MATTER OF: EMBU COUNTY PUBLIC SERVICE BOARD
BETWEEN
COUNTY ASSEMBLY OF EMBU..........................................PETITIONER
VERSUS
EMBU COUNTY PUBLIC SERVICE BOARD....................RESPONDENT
RULING
1. As the issue of interlocutory orders or rather conservatory orders has been raised the Applicant asserts that it is meet and just for the court to grant the interim relief in terms of prayer 2 of the motion. The Respondent asserts this is contrary to Section 77(2) of the County Governments Act as an appeal should be preferred before the Public Service Commission.
2. Whereas the Applicant has moved court no interim relief was granted by the court and in light of the prevailing tension as to whether there is jurisdiction or none, I cannot grant an interim relief as to do so would be an affront to notions of justice since if I have no jurisdiction my decision on that score will amount to nothing.
3. It behoves the court not to act in vain and the motion will thus await ventilation before me on the issue of jurisdiction at Meru Law Courts on 30th January 2020. The Respondent’s preliminary objection be canvassed before me then and the Applicant to file a response to the preliminary objection within 21 days of today.
It is so ordered.
Dated and delivered at Nyeri this 17th day of December 2019
Nzioki wa Makau
JUDGE
I certify that this is a
true copy of the Original
Deputy Registrar