[2021] KEELRC 2147 (KLR)
The Court found that since the 2nd Respondent had filed a Notice of Appeal challenging the Court's jurisdiction, and as jurisdiction is a foundational legal question, it would be imprudent to proceed with the hearing of the Petition on the merits. If the Court of Appeal were to find that the Employment and Labour...
Source-derived case information.
- Citation
- [2021] KEELRC 2147 (KLR)
- Parties
- Applicant: Kenya Union of Sugar Plantation and Allied Workers; Respondent: Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries and Cooperative Development; Respondent: Agriculture and Food Authority; Respondent: County Government of Kisumu; Respondent: Office of the Hon Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 29 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Application for Stay of Proceedings Pending Appeal
- Outcome
- proceedings stayed pending appeal
- Legal Topics
- Jurisdiction of Court, Public Participation, Stay of Proceedings, Constitutional Rights, Employment Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Sugar Plantation and Allied Workers
Applicant
Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries and Cooperative Development
Respondent
Agriculture and Food Authority
Respondent
County Government of Kisumu
Respondent
Office of the Hon Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Stay of Proceedings Pending Appeal
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear the Petition.
- 2 Whether proceedings should be stayed pending determination of the appeal on jurisdiction.
Ratio Decidendi
The Court found that since the 2nd Respondent had filed a Notice of Appeal challenging the Court's jurisdiction, and as jurisdiction is a foundational legal question, it would be imprudent to proceed with the hearing of the Petition on the merits. If the Court of Appeal were to find that the Employment and Labour Relations Court lacked jurisdiction, any proceedings or judgment rendered in the interim would be rendered null and void, resulting in wasted judicial time and resources. Therefore, the Court exercised its discretion to stay the proceedings pending the outcome of the appeal on the jurisdictional issue.
Court Disposition
proceedings stayed pending appeal
Orders
- Pending the hearing and determination of the 2nd Respondent’s Appeal before the Court of Appeal, these proceedings stand stayed.
- No order as to costs.
Full Case Text
Judgment text and source record
62 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
PETITION NO. 29 OF 2020
IN THE MATTER OF: THE PRINCIPLE OF PUBLIC PARTICIPATION
AND
IN THE MATTER OF: ARTICLES 1(1) & (4), 2(1), 6(2), 10(1) & (2), 19(1), 20(1), 22(1) & (2), 23(1) & (3), 27(4), 33(1), 35(1),
41(1), 232(1)(d), 258(1) & (2)(d) AND 259(1)(a) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: AGRICULTURE AND FOOD AUTHORITY ACT NO. 13 OF 2013
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER
THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: RULES 3(1), 4 AND 10 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND
FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF: RULE 7 OF THE EMPLOYMENT AND LABOUR RELATIONS COURT
(PROCEDURE) RULES, 2016
AND
IN THE MATTER OF: SECTIONS 4 AND 6 OF THE AGRICULTURE AND FOOD AUTHORITY
ACT NO. 13 OF 2013
BETWEEN
KENYA UNION OF SUGAR PLANTATION
AND ALLIED WORKERS ...........................................PETITIONER
v
CABINET SECRETARY, MINISTRY OF
AGRICULTURE, LIVESTOCK, FISHERIES AND
COOPERATIVE DEVELOPMENT .......................1st RESPONDENT
AGRICULTURE AND FOOD
AUTHORITY.........................................................2nd RESPONDENT
COUNTY GOVERNMENT OF KISUMU............ 3rd RESPONDENT
OFFICE OF THE
HON ATTORNEY GENERAL ..............................4th RESPONDENT
RULING NO. 2
1. On 12 October 2020, the Court dismissed a Notice of Preliminary Objection which had challenged its jurisdiction over the dispute herein.
2. The Objection was anchored on the grounds that there was no employer and employee relationship between the Petitioner and the Respondents; the Petition did not raise any constitutional questions and that the subject matter of the dispute was not one of those contemplated by section 12 of the Employment and Labour Relations Court Act.
3. As a result of the dismissal of the Objection, this Court gave detailed directions on 2 November 2020 to be complied with by the parties ahead of Judgment on 21 January 2021.
4. On 9 November 2020, the 2nd Respondent filed a Motion under a certificate of urgency seeking orders:
1. …
2. THAT pending the hearing and determination of the Applicant’s intended Appeal there be a stay of all further proceedings herein.
3. THAT the costs of this application be provided for.
5. Pursuant to Court directives on 17 November 2020, the following were filed
(i) Replying Affidavit by the Secretary-General of the Petitioner on 25 November 2020.
(ii) Submissions by 2nd Respondent on 30 November 2020.
(iii) Submissions by the Petitioner on 21 December 2020.
6. The Court has considered the Motion, affidavits and submissions.
7. It is not in doubt that the 2nd Respondent filed a Notice of Appeal against the Ruling of 12 October 2020 on 21 October 2020.
8. The Appeal is against a jurisdictional question, and jurisdiction is a foundational question. Without jurisdiction, a Court must of necessity down its pen.
9. In the case at hand, it would be an exercise in futility and waste of precious judicial time was this Court proceed to hear and determine the Petition on the merits and later on for the Court of Appeal to find and hold that this Court had no jurisdiction over the dispute in the first place.
10. Legal prudence, therefore, dictates that the instant Petition be stayed pending the hearing and determination by the Court of Appeal of the Appeal on the jurisdictional question.
11. The Court hereby orders
(i) THAT pending the hearing and determination of the 2nd Respondent’s Appeal before the Court of Appeal, these proceedings stand stayed.
12. No order on costs.
Delivered through Microsoft teams, dated and signed in Kisumu on this 17th day of February 2021.
Radido Stephen, MCIArb
Judge
Appearances
For Petitioner P.D. Onyango & Co. Advocates
For 1st and 4th Respondents Jane Lang’at, Deputy Chief Litigation Counsel, Office of the Attorney General
For 2nd Respondent Lubulellah & Associates
For 3rd Respondent did not participate
Court Assistant Chrispo Aura