[2010] KEHC 2176 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

JANE FRANCES ANGALIA………………………..PLAINTIFF

=VERSUS=

MASINDE

MULIROUNIVERSITYOF

SCIENCE AND TECHNOLOGY

AND OTHERS…………………………………………..DEFENDANT

RULING

Preliminary Objection

I.Background:

1. The relationship between the respondent 1st and 2nd

and the exparte applicant is that of Master/Servant andor Employer/Employee respectively.

2. The exparte applicant, a female adult alleges that she was first employed by a University known as the Western University of Science and Technology and a Constituent of Moi University sometime in the year 2004. Theuniversitywas later taken over by Masinde Mulilo College of Science and Technology which later became a University on2nd January 2007.

3. The exparte applicant received a letter from the

1st Respondent on27th November 2006terminating her employment without the opportunityto be heard.

4. An appeal against this decision was rejected on the

20th December 2007.

5. Being dissatisfied with this, the exparte applicant filed for Judicial Review proceedings inNairobi.Leave was granted on3rd June 2008.

6. A Notice of Motion was thereafter filed on

18th June 2008. The file was ordered transferred to the High Court of KenyaEldoret on6th May 2009. Thehearing was set for11th May 2010and later on

18th May 2010.

7. On the day called out for hearing of the Notice of Motion, a Preliminary Objection was raised by the Respondents.

II.Preliminary Objection

8. The Objection raised was on the Jurisdiction of the High Court.It appearsthat the Employment Act had been repealed sometime in the year 2007. As a result a new Employment Act was enacted together withthe Labour Institutions

Act of 2007.

9. Under the two new Legislation, the hearing of disputes

between Master/Servant are now exclusively with the Industrial Court of Kenya.

10. The Respondent referred this Court to the

Employment Act2007 part XII.Disputes Settlement Procedure that reads;

Section 87(1)

Subject to the Provisions of this Act whenever:-

(a)An employer or employee rejects or refuses to fulfill a

contract of service; or

(b)Any question, difference or disputearises as to the

rights or liabilities of either party: or

(c)Touching any misconduct, neglect or ill treatment of

either part or any lying to the personor propertyof either party under any contract of service the aggrieved party may complain tothe labour officer or lodge a complaint or suit in the Industrial Court.

Section 87 (2)

No Courtother than theIndustrial Courtshall determine any complaint or suit referred to in subsection 1.

11. Under the Labour Institutions Act of 2007,

Section 12 (1) provides :

“1).The Industrial Courtshall have exclusive

Jurisdiction to hear, determine and grant any appropriate reliefin respect of an application, claim or complaint or infringement of any of the provisions of this Act or any to her legislation which extends Jurisdictionto the Industrial Court, or in respect of any matter which may arise at common law between an employer and employee in the course of employment, between an employee or employer’s organization and a trade union, or between a trade union, an employers organization, a federation and a member thereof.

2).An application claim or complaint may be lodged with

the Industrial Court…………

3).……

4).…..

5)…..

6).…..

7).…..

8).…..

9).…..

10).…..

11).…..

12. …..

(a)

(b)

(c)”

(Emphasis supplied)

“The high Court since the year 2007 has no Jurisdiction

to entertain disputes involving Master/Servants”

III.In reply

12. The exparteapplicant relied on the fact that theHigh Court has exclusive Jurisdiction to hear Judicial Review proceedings.The Industrial Courtdoes not have this jurisdiction.The Court further has noted in the past thehabits of raising frequent preliminary objections.He relied on the case law of

MUKISA BISCUIT MANUFACTURING CO. LTD

-versus-

WEST END DESTRIBUTORS LTD

(1969) EA 696

that dealt on the issue of Preliminary Objection.

13. The matter herein is one of Judicial Review which is an alternative remedy that does not bar a litigant to pursue.

III.Opinion

14. Judicial Review proceedings are proceedings brought to check the excesses of an administrative or tribunal body.It deals specificallywith the due process in which coming to a decision made by such body it is not injuries to that party.Ifit is, the Court wouldnormally intefer.

15. Kenyahas introduced a new act on employment law.It has clearly stated, as above, that the disputes arising within the relationship of Master/Servant lies exclusivelywith the Industrial Court.

16. The relationship between the parties in this Judicial Reviewproceedingsis that of Master/Servant.What role thereof are these proceedings to have before Court?

17. Where the applicant can demonstrate that the Respondent has made a decision that is detrimentalto her, in the processarrived at in making such decision.

18. The fact that a new legislation by way of the Labour Institution Act No.12/2007 rule 12(1) states that the Industrial Courtshallhave exclusive jurisdiction to hear a matter toCourt.This thereforemeans that the High Court would not have jurisdiction to hear a matter that lies wholly with theIndustrial Court.

19. If the Industrial Courtthough has the Jurisdiction to hear the cases exclusively, what happens to the High Court?TheHigh Court must therefore give way to theIndustrial Court.This being created by Statute.

20. I would therefore uphold the Preliminary Objection and declarethat this Court has no Jurisdiction under the new Statutes namely, the Labour InstitutionsAct 12/2007 and the Employment Act 2007 to entertain, determine anycomplaint referred under Section 12(1) and Section 87 (2) respectively of the two new Acts.Thislies now exclusively with the Industrial Court.

21. The Notice of Motion8th June 2009therein be and is hereby struck out.Therebe costs to the Applicant/Respondent in the main Motion.

DATEDTHIS3RD DAYOFJUNE2010 AT ELDORET.

……………………………………….

M.A. ANG’AWA,

JUDGE.

Advocate

(i)Gregory Ombito Advocate instructed by the firm of M/s G. Ombito & Co.

Advocates for the Applicant- Present

(ii)Dismas Wambula Advocate instructed by the firm of M/sD. Wambula & Co.

Advocate for the Applicant/Respondent - Absent

ORDER:The above Ruling be distributed to all Magistrates in this Regionand

Kericho Region.

M.A. ANG’AWA

JUDGE

3/6/2010