[2022] KEHC 2330 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. E002 OF 2021

MARIAM ABDI MOHAMUD……………………………………PETITIONER

AND

INDEPENDENT ELECTORAL AND BOUNDARIES

COMMISSION………………………….…………………..1ST RESPONDENT

WAJIR COUNTY ASSEMBLY…………………………...2ND RESPONDENT

WAJIR COUNTY ASSEMBLY SERVICE BOARD…….3RD RESPONDENT

RULING

1. The Petitioner moved this court by way of a Constitutional Petition Under Various Articles of the Constitution.

The reliefs sought in the Petition are;

i.A declaration that the Petitioner’s legitimate expectation of being entitled to all benefits accorded to nominated Members of the Wajir County Assembly gazette in the gender top-up list on the 28th of August 2017 was violated.

ii.A declaration that the Constitutional rights of the Petitioner as set out under Articles 27(1), (2), 28, 29(d), 40(3), 41(1) and 47 of the Constitution 2010 as read with Section 4(1) of the Fair Administrative Action Act have been violated by the Respondents.

iii.General damages for violation of the Petitioner’s rights under Article 27(1) & (2), 28, 29(d), 40(3), 41(1), 47(1) of the Constitution as read with Section 4(1) of the Fair Administrative Action Act.

iv.A declaration that the Petitioner is entitled to emoluments and all such other benefits that would have accrued to her if her name was not unlawfully omitted in the gazette notice of 28th August 2017.

2. The real issue is between the Petitioner and the 2nd Respondent and by extension the 3rd Respondent and the matters in contention are the Petitioner’s alleged entitlement/emoluments and/or benefits before she was gazette as a nominated Member of the County Assembly as other alleged violations appear to have been dealt with at the trial inElection Petition No. 20 of 2017 in Chief’s Magistrate Courtleading to the Petitioner’s eventual gazettement.

3. The 2nd and 3rd Respondents though served have failed to-date to respond to the Petition.

On its part the 1st Respondent responded by filing grounds of opposition and notice of preliminary objection.

The Preliminary Objection may be summarized as to say that; this court has no jurisdiction as it has not been gazetted for purposes of handling Election Petitions.

Secondly it lacks jurisdiction pursuant toSection 12 of the Employment & Labour Relations Act Cap. 234 of the Laws of Kenya,

Thirdly, the matter is res judicata.

4. This ruling is confined to the Preliminary Objection and the court will not for now address itself to the Grounds of Opposition.

5. From the pleadings the issue of the Petitioner’s nomination was subject ofChief Magistrate’s Election Petition No. 20 of 2017and which issue was determined. An appeal arising from the said judgement was settled by consent of the parties and the Applicant gazetted as a nominated member of the County Assembly.

6. Courts have aptly and repeatedly stated that jurisdiction is everything to a court and must be the first issue to be addressed when it arises.

In the matter of Advisory Opinions of the Supreme Court underArticle 163(3) of the Constitution – Constitutional Application No. 2 of 2011the Supreme Court restated the old decision ofLilian “S” [1989] KLR 1as follows

“The Lilian “S” Case ( [1989] KLR 1) establishes that jurisdiction flows from the law and the recipient – court is to apply the same, with any limitations embodied therein. Such a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity.”

InSamuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLRthe Supreme Court in the same vien stated

“68. A court’s jurisdiction flows from either the Constitution or Legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

In the celebrated case that was referenced by the Supreme court ;Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd(supra) the Court of Appeal stated

“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a confirmation of proceedings pending other evidence. A court of law must down its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction……. where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

7. The High Court and the Employment & Labour Relations Court are creatures of the Constitution. Article 165 establishes the High Court. Article 165 (3) arrogates it unlimited jurisdiction in criminal and civil matters and goes further in Article 165 (5) to state that the High Court will not have jurisdiction on matters reserved for the exclusive jurisdiction of the Supreme Court and those falling within the jurisdiction of the courts contemplate in Article 162 (2) which are;

Employment & Labour Relations Court and the Environment & Land Court.

8. On its part, Section 12 of the Employment and Labour Relations Court Act No. 20 of 2011 provides the jurisdiction of the said court to inter alia include; hearing and determiningalldisputes relating to or arising out of employment between an employer and employee.

9. In a more recent matter,Civil Appeal No. 119 of 2017 (NKU) Public Service Commission & 2 Others v Eric Cheruiyot & 16 Othersa 2022 decision, the Court of Appeal stated inter alia at paragraph 44 of its judgement

“On interpretation of the provision of section 12 of the Employment & Labour Relations Court Act is that the Employment & Labour Relations Court has jurisdiction to entertain any dispute under section 12 (1) but the dispute between the parties must be related to their employment and/or touching on labour relations. This is therefore to mean that the jurisdiction of the Employment & Labour Relations Court is not limited to the determination of disputes arising out of a contract of employment but between an employee and an employer, the court can also determine any constitutional violations of the rights of any party arising from an employee – employer relationship. However, for the court to entertain a petition premised on the breach of a party’s fundamental rights under the Constitution, the alleged constitutional breach must be ancillary and incidental to the matters contemplated under section 12 of the Act. Our view is fortified by the preamble to the Employment and Labour Relations Act, 2011 which provides

‘An Act of Parliament to establish the Employment & Labour Relations Court to hear and determine disputes relating to employment & labour relations and for connected purposes.’

10. As stated earlier in this ruling the real issue relates to the emoluments and benefits of Petitioner. The issue is indeed a labour related issue and should the party feel that the non-payment of the same has breached a constitution provision the Employment & Labour Relations Court is clothed with the jurisdiction to determine if there is a violation of the Constitution and if the emoluments and benefits ought to be paid.

11. Based on the above the view of this court is that the mandate to hear this matter lies within the Employment & Labour Relations Court. The preliminary objection as relates to the issue of jurisdiction succeeds. That being the case this court will not delve on the other remaining two issues as it must immediately down its tools.

12. The matter in the interest of justice will forthwith be transferred to the right forum, which is the Employment and Labour relation Court.

13. The same be placed before the Principal Judge of the said court for further directions in the next 10 days.

14. Costs to the 1st Respondent.

DELIVERED AND SIGNED AT GARISSA THIS 10TH DAY OF FEBRUARY, 2022.

……………….………………

ALI ARONI

JUDGE