[2023] KEHC 22429 (KLR)

Keter & 20 others v Finlays (Kenya) Limited & another; Federation of Kenya Women Lawyers & 3 others (Interested Parties) (Constitutional Petition 2 of 2023) [2023] KEHC 22429 (KLR) (20 September 2023) (Ruling)

Neutral citation: [2023] KEHC 22429 (KLR)

Republic of Kenya

In the High Court at Kericho

Constitutional Petition 2 of 2023

JK Sergon, J

September 20, 2023

Between

Sammy Kiplangat Keter

1st Petitioner

Alice Chemeli Martim

2nd Petitioner

Nancy Njeri

3rd Petitioner

Cecilia Chepkorir Ngeno

4th Petitioner

Jacob Odongo Opere

5th Petitioner

Grace Akinyi Opere

6th Petitioner

Teresia Atelo Nyangweso

7th Petitioner

Brenda Chepkoech Mutai

8th Petitioner

Caroline Koskei

9th Petitioner

Flomena Anna Chepngeno Chumo

10th Petitioner

Lily Langat

11th Petitioner

David Kipngeno Langat

12th Petitioner

David Aronsio Onyancha

13th Petitioner

Alice Chebet Tarus

14th Petitioner

Millicent Cheptoo

15th Petitioner

Gladys Bwari Onywoki

16th Petitioner

Jescah Asiko Opwondi

17th Petitioner

Loice Atambitsa

18th Petitioner

Lina Chelangat Kirui

19th Petitioner

Nora Chemutai Soi

20th Petitioner

Evaline Kwamboka

21st Petitioner

and

Finlays (Kenya) Limited

1st Respondent

Ekaterra tea Kenya Plc

2nd Respondent

and

Federation of Kenya Women Lawyers

Interested Party

Human Rights commission

Interested Party

Kenya Plantation & Agricultural Workers Union

Interested Party

Rain forest Alliance

Interested Party

Ruling

1. This ruling is the outcome of two notices of preliminary objection. The first is dated March 23, 2023in which the 2nd respondent argued that the petition dated 7/3/2023 and amended notice of motion dated 13/3/2023 are bad in law as this court lacks jurisdiction to entertain the same.

2. The 2nd respondent put forward the following grounds:-i.The application and the petition raise constitutional issues arising from and/or in respect of an employer-employee relationship.ii.The Employment and Labour Relations court, by virtue of article 162 (2) of the Constitution of Kenya, 2010 and section 12 (1) of the employment and Labour Relations Court Act No.20 of 2011, has exclusive original and jurisdiction to hear and determine all disputes relating to Employment and Labour Relations, including Constitutional matters arising therefrom.iii.The High court lacks jurisdiction, by virtue of article 165 (5) (b) of the Constitution of Kenya, 2010 to deal with matters that fall within the ambit of the employment and Labour Relations Court.

3. The secondnotice of preliminary objection is dated April 24, 2023in which the 1st respondent challenged the amended motion dated March 27, 2023 and the amended petition dated March 13, 2023 and relied on the following grounds:-i.The alleged 1st Respondents though served with pleadings herein is not known by the name “Finlys (kenya) Ltd.”ii.The High court lacks jurisdiction to entertain the suit by virtue of article 162 (2) (a) read together witharticle 165 (5) (b) of the Constitution since the subject matter in dispute relate to Employment and Labour Relations.

4. When the aforesaid notices came up for hearing, parties opted to file written submissions. I have considered the rival written submissions plus the grounds stated on the two notices.

5. The main ground raised in the notices of preliminary objection is to the effect that theissues in dispute are matters which belong to the Employment and Labour Relations Court under article 162(2) of the Constitution of Kenya, 2010 and under section 12 (1) of theEmployment and Labour Relations Act No.20 of 2011.

6. The 1st and 2nd Respondents averred that this court lacks Jurisdiction to entertain the dispute under article 165 (5) (b) of the Constitution of Kenya, 2010.

7. It is the submission of the 1st respondent that the suit is based on breaches arising out of employment relationships, therefore the High court lacks Jurisdiction to hear and determine the instant Petition together with the applications emanating therefrom.

8. The 1st respondent urged this court to strike out the petition and any subsequent pleadings emanating therefrom.

9. The 2nd respondent also submitted that the High Court is devoid of Jurisdiction to hear and determine the dispute between the parties in the instant petition.

10. The 2nd respondent pointed out that the matters raised in the petition and the subsequent application relate to an employment relationship between the Respondent, the Petitioners.

11. This court was urged to dismiss the petition on the basis that the court is bereft of Jurisdiction. The 2nd respondent further stated that the Employment and Labour Relations court can hear and determine any claims under the Constitution in respect of alleged violation of fundamental rights and freedoms under chapter 4 of the Constitution which arise from an Employment Relationship.

12. In Response to the 1st and 2nd respondent’s submissions over the notices as the preliminary objection, the petitioners are of the submission that there is no express provisions giving Jurisdiction to Employment and Labour Relations Court to entertain hear and determine the questions whether a right or fundamental freedom in the Bill of rights has been denied, infringed or threatened.

13. The petitioners further argued that the High Court Jurisdiction to entertain the instant petition since the petitions are basically inviting this court to determine the questions whether a right, fundamental freedom in the Bill of rights has been denied, violated, infringed or threatened.

14. It is apparent that the petitioners in the further amended petitiondated April 19, 2023in paragraph 1 aver as follows:-“1. The petitioners are Kenyan Citizens Ordinarily residing in Kericho County within the Republic of Kenya and are workers or were at same point workers of the 1st and 2nd Respondents. The Petitioners present this Petition on their own behalf and in the interest of 12,000 women workers who are discontented with the high levels of impunity in Kenya and in the Public Interest bearing their responsibility Under article 3, 10, 22 and 258 of the constitution to respect, uphold and defend the Constitution.”

15. In paragraph 79 and 92 of the further amended petition which the petitioners listed the alleged violations of rights and fundamental freedoms committed by the 1st respondent against them in the course of the Petitioners employment.

16. There is no dispute that Under article 162 (2) (b) of the constitution of Kenya, 2010, the employment and Labour Relations court is given exclusive Jurisdiction over disputes relating to employment and Labour Relations.

17. I am of the view that once the Constitution and the Act, has given exclusive Jurisdiction over employment disputes to the Employment and Labour Relations court, that Jurisdiction encompasses disputes pertaining to violation of rights and fundamental freedoms.

18. The High Court does not therefore have jurisdiction to entertain the present suit by virtue of the Express Provisions ofarticle 165 (5) (b) of the Constitution of Kenya, 2010.

19. I am persuaded by the argument put forward by the 2nd respondent that the Jurisdiction of the Employment and Labour Relations to hear and determine Constitutional Matters arising out of employment relationships is settled by judicial pronouncements.

20. In the case ofInternational Centre for Insect Physiology and Ecology (ICIPE) =VS= Nancy MCnally (2018)eKLR the court of appeal expressed itself as follows:-“There cannot be any argument that the ELRC is clothed with Jurisdiction to hear and determine such Constitutional issues as an when they arise from Employment and Labour Relations. Any doubts on that Jurisdiction were settled in the case of United States International University (USIU) -vs- Attorney General (2012)eKLR.” which was upheld by this court in Daniel N. Mugendi v Kenyatta University & 3others [2013]eKLR.”

21. In the end, I find the two notices of preliminary objections to be meritorious. i uphold the preliminary objections and proceed to dismiss the amended petition dated 13/3/2023 and the further amended petition of even date together with all the applications emanating from those petitions.

22. In the circumstances of this matter, a fair order on costs is to order which I hereby do that each party meets its own costs.

Dated, Signed and Delivered Virtually this 20th day of September, 2023. J.K. SERGONJUDGEIn the presence of:C/Assistant – Rutoh