[2022] KEELRC 913 (KLR)
The court determined that the Employment and Labour Relations Court has exclusive jurisdiction to hear and determine constitutional petitions that arise from or relate to employment and labour relations. This is supported by both statutory and constitutional provisions, as well as binding judicial precedent. The...
Source-derived case information.
- Citation
- [2022] KEELRC 913 (KLR)
- Parties
- Applicant: Kenya National Union of Nurses; Respondent: Cabinet Secretary, Ministry of Public Service, Youth and Gender Affairs; Respondent: The Public Service Commission; Respondent: The Honourable Attorney-General; Respondent: The National Employment Authority
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition 113 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- J Rika
- Legal Topics
- Jurisdiction of Elrc, Constitutional Rights in Employment, Public Service Employment, Performance Management Tools
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Union of Nurses
Applicant
Cabinet Secretary, Ministry of Public Service, Youth and Gender Affairs
Respondent
The Public Service Commission
Respondent
The Honourable Attorney-General
Respondent
The National Employment Authority
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear and determine constitutional petitions relating to employment and labour relations.
- 2 Whether the High Court has exclusive jurisdiction over constitutional matters involving employment and labour relations.
Ratio Decidendi
The court determined that the Employment and Labour Relations Court has exclusive jurisdiction to hear and determine constitutional petitions that arise from or relate to employment and labour relations. This is supported by both statutory and constitutional provisions, as well as binding judicial precedent. The High Court's jurisdiction is expressly ousted in such matters by Article 165(5)(b) of the Constitution, and the E&LRC Act further defines the court's mandate. The preliminary objection raised by the respondents, challenging the court's jurisdiction, is therefore without merit and is declined.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is declined.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT NAIROBI
PETITION NUMBER 113 OF 2019
BETWEEN
KENYA NATIONAL UNION OF NURSES ...............................................................PETITIONER
VERSUS
1. CABINET SECRETARY, MINISTRY OF
PUBLIC SERVICE, YOUTH AND GENDER AFFAIRS
2. THE PUBLIC SERVICE COMMISSION
3. THE HONOURABLE ATTORNEY-GENERAL
4 THE NATIONAL EMPLOYMENT AUTHORITY................................................RESPONDENTS
RULING
1 The Petitioner prays that the decision by the Respondents, to introduce new tools to measure performance in public service, be declared unconstitutional.
2 The Petitioner seeks also, to have an order of certiorari quashing the decision, and an order of prohibition, permanently barring the Respondents from implementing the decision.
3 The Attorney-General has filed a Notice of Preliminary Objecting, challenging the jurisdiction of the Court, to hear and determine the Petition. It is alleged that it is only the High Court with jurisdiction in the dispute, under Article 165 [3][d] [i] of the Constitution and that jurisdiction of the E&LRC, is confined to matters and persons defined under Section 12 of the E&LRC Act.
4 It was agreed by the Parties that the Objection is heard and determined through Written Submissions. These were confirmed to have been filed at the last Court appearance on 4th November 2021.
The Court Finds: -
5 There is a catena of Judicial Authorities establishing the jurisdiction of the E&LRC, in constitutional litigation, in matters relating to employment and labour relations.
6 Among the early decisions on the subject, after promulgation of the Constitution in 2010, is the Court of Appeal decision, Daniel N. Mugendi v. Kenyatta University & 3 Others [2013] e-KLR.
7 It was held: -
§ The High Court does not have jurisdiction to entertain matter relating to fundamental rights, with regard to employment and labour relations matters.
§ It is in the jurisdiction of the E&LRC to exclusively entertain these matters, with regard to Article 165[5][b] of the Constitution.
8 The decision has assiduously been applied in subsequent disputes on the Court’s constitutional jurisdiction, including in E&LRC decision, Bernard Odero Okello & Another v. Cabinet Secretary for Industrialization & Others [2020] e-KLR.
9 The Petition involves employment in the public service. It involves the Public Service Commission and the National Employment Authority. It involves performance measurement tools in the public service. Why would the E&LRC not be seized of jurisdiction?
IT IS ORDERED: -
a The Preliminary Objection has no merit and is declined.
b No order on the costs.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 3RD DAY OF FEBRUARY 2022.
JAMES RIKA
JUDGE