[2023] KEELRC 1042 (KLR)

Mboya v Pharmacy and Poisons Board & 3 others (Petition E030 of 2023) [2023] KEELRC 1042 (KLR) (27 April 2023) (Ruling)

Neutral citation: [2023] KEELRC 1042 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E030 of 2023

L Ndolo, J

April 27, 2023

IN THE MATTER OF ARTICLES 2, 19, 20(1-4), 21(1) & (3), 22(1) & (2)(b) & (c), 23(1) & (3), 27, 28, 41(1) & 2(b), 47, 48, 50(1), 73, 75, 159, 162(2)(a), 165(3)(b), 232, 258(1) & (2)(b) & (c) and 259(1) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE EMPLOYMENT ACT, 2007 AND IN THE MATTER OF THE PHARMACY AND POISONS ACT, CHAPTER 244 OF THE LAWS OF KENYA AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES AND IN THE MATTER OF CONTRAVENTION OF NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE UNDER ARTICLE 10, THE PRINCIPLES OF LEADERSHIP AND INTEGRITY UNDER ARTICLE 73 AND THE VALUES AND PRINCIPLES OF PUBLIC SERVICE UNDER ARTICLE 232 OF THE CONSTITUTION OF KENYA, 2010

Between

Apollo Mboya

Petitioner

and

Pharmacy And Poisons Board

1st Respondent

Principal Secretary, Ministry Of Health (State Department of Public Health & Professional Standards)

2nd Respondent

Dr. Fred Moin Siyoi

3rd Respondent

Attorney General

4th Respondent

Ruling

1. The Petitioner filed a Petition and a Notice of Motion, both dated 1February 7, 2023, challenging the appointment of the 3rd respondent, Dr. Fred Moin Siyoi as the CEO/Secretary of the 1st respondent.

2. Subsequently, the 1st respondent filed a notice of Preliminary Objection dated February 27, 2023, challenging the jurisdiction of this court to hear and determine the matter. This ruling relates to that Objection.

3. The 1st respondent bases its objection on the following grounds:a)That the jurisdiction of this court has been wrongly invoked in total disregard of the provisions of section 12(1) of the Employment and Labour Relations Court Act;b)That no employer-employee relationship exists between the petitioner and any of the respondents.

4. In their written submissions, the parties appear to have subsumed the merits of the petitioner’s application with the 1st respondent’s Objection. I will however, at this stage, only deal with the Objection, as it challenges the jurisdiction of the Court to deal with this matter in the first place.

5. In urging its Objection, the 1st respondent relies on the decision in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited [2012] eKLR where the Supreme Court stated as follows:“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.”

6. The 1st respondent submits that because there is no employment relationship between the petitioner and the respondents, then this court lacks jurisdiction to entertain the Petition and the Notice of Motion.

7. Further, the 1st respondent claims that the issue at hand is on leadership and/or membership of the 1st respondent, which issue is not employment related but an issue of directorship to be determined by the High Court.

8. The 3rd respondent associates himself with the 1st respondent’s Objection. He submits that employment rights claims as raised by the petitioner are private rights claims.

9. On his part, the petitioner submits that under article 162(2)(a) of the Constitution, this court has jurisdiction to hear and determine all employment and labour relations disputes. He relies on several decisions; United States International University v Attorney General [2012] eKLR; Daniel N. Mugendi v Kenyatta University & 3 others[2013] eKLR; Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others (Interested Parties) [2020] eKLR.

10. The petitioner further relies on the Supreme Court decision in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others[2014] eKLR where it was held that:“…the promulgation of the 2010 Constitution enlarged the scope of locus standi in Kenya. Articles 22 and 258 have empowered every person, whether corporate or non-incorporated, to move the courts contesting any contravention of the Bill of Rights, or the Constitution in general.”

11. The jurisdiction of this Court is anchored in article 162(2)(a) of the Constitution which provides as follows:(2)Parliament shall establish courts with the status of the High Courtto hear and determine disputes relating to-(a)employment and labour relations; and(b)…

12. Pursuant to this constitutional edict, Parliament enacted the Employment and Labour Relations Court Act, which at section 12(1) provides as follows:12. Jurisdiction of the court

(1)The court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the court relating to employment and labour relations including-(a)disputes relating to or arising out of employment between an employer and an employee;(b)disputes between an employer and a trade union;(c)disputes between an employer’s organisation and a trade union’s organisation;(d)disputes between trade unions;(e)disputes between employer organisations;(f)disputes between an employers’ organisation and a trade union;(g)disputes between a trade union and a member thereof;(h)disputes between an employer’s organisation or a federation and a member thereof;(i)disputes concerning the registration and election of trade union officials; and(j)disputes relating to the registration and enforcement of collective agreements.

13. My reading of the foregoing constitutional and statutory provisions is that the jurisdiction to hear and determine all matters, where the dominant cause of action is employment related, resides in this Court. The naming of parties to disputes under section 12 of the Employment and Labour Relations Court Act cannot therefore be used to limit the very wide jurisdiction granted by article 162(2)(a) of the Constitution.

14. Moreover, under articles 22 and 258 of the Constitution, any person has a right to institute court proceedings claiming violation of the Bill of Rights or contravention of the Constitution generally. This would include a person acting in the public interest.

15. The subject of the petitioner’s Petition and Notice of Motion is the appointment of the 3rd respondent to an office in the public service. this is clearly an employment matter within the jurisdiction of this court.

16. The 1st respondent’s Objection is therefore not well taken and is overruled with costs in the Petition.

17. The parties are directed to fix the petitioner’s Notice of Motion for hearing on priority basis.

18. Orders accordingly

DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL 2023LINNET NDOLOJUDGEAppearance:Apollo Mboya (the Petitioner in person)Ms. Saina for the 1st RespondentMr. Malenya for the 3rd RespondentNo appearance for the 2nd and 4th Respondents