[2023] KEELRC 2311 (KLR)

Forum for Good Governance and Human Rights v Public Service Commission & 4 others; Central Organisation of Trade Unions (COTU-K) & 2 others (Interested Parties) (Employment and Labour Relations Petition E058 of 2023) [2023] KEELRC 2311 (KLR) (29 September 2023) (Ruling)

Neutral citation: [2023] KEELRC 2311 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Petition E058 of 2023

AN Mwaure, J

September 29, 2023

Between

Forum for Good Governance and Human Rights

Petitioner

and

Public Service Commission

1st Respondent

The Cabinent Secretary, Labour & Social Protection

2nd Respondent

The Cabinent Secretary, Public Service Youth and Gender Affairs

3rd Respondent

The Hon. Attorney General

4th Respondent

The Union of Kenya Civil Servants

5th Respondent

and

Central Organisation of Trade Unions (COTU-K)

Interested Party

Federation of Kenya Employers (FKE)

Interested Party

The Registrar of Trade Unions

Interested Party

Ruling

1. The Petitioner’s petition and notice of motion application dated March 17, 2023 is opposed by the 2nd, 3rd and 4th Respondents and the 3rd Interested Party who filed a preliminary objection.

2. In the preliminary objection dated April 19, 2023 the 2nd 3rd and 4th Respondents and 3rd interested party assert that:i.this court lacks the requisite jurisdiction to hear, determine and issue orders against the prayers made in the petition and application hereinii.the petitioner/applicant does not havelocus standito bring this suit on behalf of civil servants who are union members because the CBA challenged is a contractual agreement between the civil servants, their employers and union which are legal persons who can sue and be sued in their own names and capacities.iii.this is not a public interest litigation as enshrined in Article 22,159 and 258 of the Constitutioniv.the petition and application are a violation of Article 41 of the Constitution on fair labour practices as well as section 4 of the Labour Relations Act on the rights of employees to join a trade union.v.the petition and application are an abuse of the constitutional court process by filing a constitutional petition on matters of industrial relations that do not raise constitutional issues.

The 2nd 3rd and 4th Respondents and 3rd interested party Submissions 3. The Respondents submit that preliminary objections are raised before the substantive matter is heard and determined on merit to save the court’s time from determining a matter it has no authority over. They are raised from a pure point of law and seek to challenge or object to pleadings filed in court. The Respondents therefore submit that no facts are in dispute in this present case as relates to the raised objection. The matter is therefore, properly filed as a notice of preliminary objection.

4. The Respondents submitted that this court lacks jurisdiction to entertain the petition and application as that jurisdiction is conferred to the High Court on grounds that the petitioner challenges the constitutionality of section 49 and 54 (6) of the Labour Relations Act and prays the same be declared unconstitutional.

5. The Respondents submitted that Article 165(3)(d)(i) of the Constitution provides that the high court shall have jurisdiction to hear any question respecting the interpretation of the constitution including determination of the question whether any law is inconsistent with or in contravention of the constitution.

6. Against this background, it was submitted for the Respondents that the high court and employment and labour relations court are courts of equal status, however, none of them can hear matters specifically designated to be heard by one not the other. They relied on the supreme court case of Republic V Karisa Chengo & 2 Others(2017) eKLR.

7. The Respondents submitted that the file should be transferred to the high court for it is the court of jurisdiction.

8. The Respondent observed that the Petitioner is a non-governmental organization whose objects includes the promotion and advocacy of values of good governance and human rights in sound labour and employment.

9. It is the Respondent’s submission that despite their objects, the Petitioner wrongfully approached this court by bringing the petition on behalf of civil servants who are union members and have union dues deducted by extension of benefit enjoyed from the union.

10. The Respondents submitted that the Petitioner lacks locus standi as the Collective Bargaining Agreement (CBA) challenged is a contractual agreement between civil servants, their employers and the union all of whom are legal persons that have capacity to sue and be sued in their name and are at liberty to challenge the same in court.

11. The Respondents submitted that petitioner brought the petition under a wide umbrella of constitutional provisions without stating in clear terms how the provisions have been threatened or infringed and how it affects the public for it to be deemed a matter of public interest.

12. It further submitted that the petitioner has not demonstrated how the public stands to suffer a disadvantage from the deduction of agency fees from civil servants from job group ‘N’.

Petitioner’s Submissions 13. The Petitioner submitted that the preliminary objection dated April 19, 2023 is frivolously initiated, incompetent and a non-starter as it is blurred with facts which will require evidence and this court will need to interrogate, all grounds raised. All grounds advanced by the Respondent are not pure points of law.

14. The Petitioner submitted that the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2016 is incorporated inEmployment and Labour Relations Court (Procedure) Rules, 2016, as Rule 7 and subsists to date therefore both the High Court and the Special Courts share the same rules of procedure, when it comes to the hearing matters under Article 165(3)(b), (c) and (d) of the Constitution.

15. The Petitioner submitted that this court is legally constituted under Article 165(3)(b) & (d) of the Constitution to hear and determine questions of violation, denial, infringement of, or threat under the Bill of Rights and not limited to the interpretation of the Constitution and Statutes in matters connected to Employment and Labour Relations, whether the violations, denials, infringements of, or threats stem out and or occasioned by statutes, policy documents, contracts and or agreements and or regulations.

16. The Petitioner submitted that the petition raises issues arising from the Employment Act, Labour Institutions Act and Labour Relations Act which fall under employment and labour relations court jurisdiction.

17. The Petitioner submitted that where a contract affects non-parties, aggrieved non-parties may challenge the same. CBAs are entered to on behalf of all unionizable employees, irrespective some employees are not members. The basis of this is derived from the presumption of law that trade unions which are involved are representative trade unions if they meet the threshold as set out at sections 14(1)(b)(i) and 54(1) of the Labour Relations Act. It is also on the basis of those CBAs upon which agency fees are chargeable against non-members of trade unions. This is an issue for determination in this instant petition. And on this the Petitioner has locus standi.

18. The Petitioner submitted that the petition was lodged on behalf of all unionizable employees who are not members of trade unions and these employees enjoy the protection of the constitution pursuant to Article 41 of the Constitution.

Analysis and Determination 19. The following issues have been raised for this court’s determination:1)Whether this court has jurisdiction to entertain the Petitioner’s petition and application herein2)Whether the Petitioner has locus standi

20. The 2nd 3rd and 4th Respondents and 3rd interested party submitted that this court lacks jurisdiction to entertain the petition and application as that jurisdiction is conferred to the High Court on grounds that the petitioner challenges the constitutionality of section 49 and 54 (6) of the Labour Relations Act and prays the same be declared unconstitutional.

21. Indeed paragraph 26 of the petition clearly states that the petitioner’s contention is that section 54(6) of the Labour Relations Act be amended and/or deleted to allow the employer to revoke the recognition agreement and that it complicates fair labour practices as envisaged under Article 36 and 41 of the Constitution.

22. Further, in its prayer number (viii) the petitioner sought that this court grants it an order of certiorari to bring section 54(6) of the Labour Relations Act be to be quashed or be deleted.

23. The court is advised by settled authorities as to what constitutes applications for preliminary objection. In the case of Mukhisa biscuits Manufacturing Ltd vs West End Distributors1969 EA 696 it provides that:“a preliminary objection consists of a point of law which has been pleaded and which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of he suit. Examples are an objection to the jurisdiction of court or a plea of limitation or a submissions that the parties are bound by a contract giving rise ot arbitration.

24. In the case ofPeter Mungai vs Joseph Naaba Kuria & Another , Leah Njeri Ndichu ( interested party)2022 eKLR the court held:-“for a preliminary objection to succeed the following facts ought to be satisfied. First it should be a pure point of law, secondly it is argued on the assumption that all the facts pleaded by the other side are correct and finally, it cannot be raised if any fact that has to be ascertained or if what is sought is an exercise of judicial discretion. A valid preliminary objection should if successful dispose of the suit.

25. The matters raised by the 2nd, 3rd, 4th respondents and 3rd interested parties are greatly multifaceted. They range from claiming that the petitioner is challenging sections 49 and 54(b) of the Labour Relations Act and hence the petition should be heard by a constitutional court. They claim the employees and the Civil Servants Union are legal entities who should sue on their own. Then they claim the petitioner has no locus standi to file the suit. They raise further issues that this is not a public interest litigation and finally they allege the petitioner has violated the tenets of article 41 of the Constitution as well as section 4 of the Labour Relations Act. They aver the petitioner has abused the court process by filing a constitutional suit in an employment and labour relations court.

26. All these do not raise pure points of law and indeed they all require that evidence be adduced to prove the same. That defeats the provisions set out in applications of preliminary objection.

27. In that case and without belabouring the point the court finds the preliminary objection is not merited and at this stage the court holds the view that it has jurisdiction to deal with the issues raised under article 162(2)(a) of the constitution of Kenya 2010 and section 12 of Employment and Labour Relations courtwhich give jurisdiction to this court to handle trade union matters and this is one such a matter. The parties are at liberty to move the court to full hearing where the matters raised can be canvased in their entirety and clear determination arrived at. The preliminary objection dated April 19, 2023 is therefore found unmerited and is dismissed. Costs are ordered to be in the cause.

Dated, signed and delivered virtually at Nairobi this 29thday of September 2023. ANNA N. MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2) (d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.ANNA N. MWAUREJUDGEPetition No E058 of 2023 Ruling Page 5 of 5