[2023] KEELRC 1338 (KLR)

Mohamud v Independent Electoral and Boundaries Commission & 2 others (Petition 35 of 2022) [2023] KEELRC 1338 (KLR) (25 May 2023) (Judgment)

Neutral citation: [2023] KEELRC 1338 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition 35 of 2022

B Ongaya, J

May 25, 2023

IN THE MATTER OF THE ENFORCEMENT OF ARTICLES 1, 2, 3, 10, 19, 20, 21, 22, 23, 24, 27,28,29,38,40,47,48,50 OF THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF VIOLATION OF THE RIGHTS AND FREEDOMS IN THE BILL OF RIGHTS IN THE MATTER OF RULES OF NATURAL JUSTICE AND THE DOCTRINE OF LEGITIMATE EXPECTATION

Between

Mariam Abdi Mohamud

Petitioner

and

Independent Electoral And Boundaries Commission

1st Respondent

Wajir County Assembly

2nd Respondent

Wajir County Assembly Service Board

3rd Respondent

(Formerly High Court Petition No. E002 OF 2021 at Garissa)

Judgment

1. The petitioner is Mariam Abdi Mohamud. She filed the petition onFebruary 10, 2021 through M/s Okubasu, Munene & Kazungu LLP Advocates. The petitioner prayed for the following reliefs:1. A declaration that the petitioner’s legitimate expectation of being entitled to all benefits accorded to nominated members of the Wajir County Assembly gazetted in the gender top up list published on the August 28, 2017 was violated.2. A declaration that the constitutional rights of the petitioner set out under Articles 27(1) & (2), 28, 29(d), 40(3), 41 (1), 47(1) of the Constitution as read together with section 4(1) of the Fair Administrative Action Act has been violated by the Respondents.3. General Damages for violation of the Petitioner’s Constitutional Rights under Articles 27(1) &(2), 28, 29(d), 40(3), 41 (1), 47(1) of the Constitution as read together with section 4(1) of the Fair Administrative Action Act.4. 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 August 28, 2017. 5.Costs of the petition.

2. The undisputed facts leading to the petition and relied upon by the petitioner are as follows:a.The Party of National Unity (PNU) being a registered political party nominated and submitted the name of the petitioner prior to the General Elections of August 8, 2017 in the gender top-up list, among others, to the IEBC as required under Article 90(2) (a) of the Constitution.b.The 1st respondent (IEBC) published a list of the successful candidates vide Gazette Notice No 8380 Volume CXIX-No 124 on August 28, 2017 and unlawfully omitted the petitioner’s name as a validly nominated member of the County Assembly of Wajir despite the fact that both PNU and the petitioner had met all the prerequisite conditions.c.The petitioner challenged the said Gazette Notice by IEBC in Mariam Abdi Mohamed Versus IEBC and Another [2017]eKLR and Hon Wanjala by the judgment delivered on December 14, 2017 declared the Gazette Notice as null and void and ordered that the IBC to Gazette the petitioner as a nominated MCA.d.An appeal was preferred to the Hign Court against judgment and decree by Hon. Wanjala but the same was settled out of Court leading to the gazettement of the petitioner as a nominated member of the county assembly (MCA) vide Gazette Notice No 6628 of July 6, 2018. it was to the effect that the petitioner’s name be included as an addition to the names that were initially published on August 28, 2017 under Gazette Notice No 8380 CXIX No 124 of August 28, 2017. e.The petitioner filed the petition in the High Court at Garissa and subsequently in a ruling delivered on February 10, 2022 the Court (Ali Aroni J) found that the Employment and Labour Relations Court of Kenya was clothed with the jurisdiction to determine the petition and transferred the matter for hearing and determination accordingly.

3. The petitioner has urged as follows:a.By failing to publish the name of the petitioner in the Gazette notice of August 28, 2017 for no lawful reason the 1st respondent acted in contravention of Article 10 (1) and (2) of the Constitution which required the IEBC to act in in a manner that upholds National Values and Principles including rule of law, democracy, human dignity, equity, social justice, equality, human rights and non-discrimination.b.The 1st, 2nd and 3rd respondents have violated Article 10(1) by failing to pay the petitioner the accruing emoluments after the unlawful failure of her gazettement on August 28, 2017. The values and principles violated include rule of law, democracy, human dignity, equity, social justice, equality, human rights and non-discrimination.c.The failure of her gazettement on August 28, 2017 amounted to violation of Article 27(1) and (2) of the Constitution requiring that every person be subjected to equal protection and equal benefit of the law and that equality includes the full and equal enjoyment of all rights.d.By omitting to gazette the petitioner on August 28, 2017 and failing to pay the accruing emoluments the respondents have breached the petitioner’s right to human dignity contrary to Article 28 of the Constitution.e.By omitting to gazette the petitioner on August 28, 2017 and failing to pay the accruing emoluments the respondents have subjected the petitioner to psychological torture contrary to the provisions of Article 29(d) of the Constitution.f.The failure to gazette the petitioner on August 28, 2017 violated the petitioner’s political right of holding office if so elected contrary to provisions of Article 38(3) (c) of the Constitution.g.By arbitrarily withholding the accrued emoluments the 1st, 2nd and 3rd respondents have deprived the petitioner of her property per Article 40(3) of the Constitution. Further, by so doing the respondents have breached the petitioner’s right to fair labour practices contrary to the provisions of Article 41 (1) of the Constitution. The failure to pay the accrued emoluments further amounted to subjecting that petitioner to an unfair and unlawful administrative action contrary to Article 47(1) of the Constitution as read with section 4(1) of the Fair Administrative Action Act.

4. The 1st respondent opposed the application by filing the replying affidavit of Chrispine Owiye the Director of Legal Services for the 1st respondent sworn on December 14, 2022 and drawn abd filed by Hassan Mutembei & Company Advocates. It was urged for the 1st respondent as follows:a.The facts leading to the petition as pleaded for the petitioner are admitted.b.There is no employer-employee relationship between the 1st respondent and the petitioner and violations of failure to receive the accrued emoluments cannot be validly moved against the 1st respondent. The alleged legitimate expectation in that regard is denied.c.Under section 18 of the Employment Act, wages and salaries are deemed to be due at the end of a month or part thereof fo employees working for month or more. Period.d.The 1st respondent discharged its constitutional role by gazetting the petitioner on July 6, 2018 by Gazette Notice No 6628. e.The 1st respondent is improperly enjoined as a respondent.f.The gazettement was pursuant to a consent order whose terms were not that the accrued salaries be paid.g.The 1st respondent is a stranger to the allegations and reliefs sought.h.The petition be dismissed with costs.

5. It appears that the 2nd and 3rd respondents did not appear, file replying affidavits or final submissions.

6. The Court has considered the material on record and the submissions filed for the petitioner and the 1st respondent. The Court returns as follows.

7. To answer the 1st issue, the Court finds that the petitioner’s allegations as urged against the 1st respondent are res judicata as they ought to have been urged in the earlier proceedings Mariam Abdi Mohamed Versus IEBC and Another [2017]eKLR and the petitioner has not urged a justification why, in that previous case, the reliefs sought and flowing from the failure of the 1st respondent to gazette her were not pursued and urged. The allegations as made against the 1st respondent for failure to initially gazette the petitioner will collapse.

8. To answer the 2nd issue, the Court finds that the petitioner has not established justifiable basis or ground for the 1st respondent to pay her the accrued emoluments after the gazettement of July 6, 2018. It is not urged or alleged for the petitioner that if the initial gazettement of August 28, 2017 had included her name then her emoluments as nominated MCA would have been paid by the 1st respondent effective that date.

9. To answer the 3rd issue, the petitioner has made a blanket prayer against the respondents for payment of accrued and unpaid emoluments without showing the justification to do so. The petitioner has exhibited the letter dated September 25, 2019 addressed to the Speaker of the 2nd respondent being also the chairperson of the 3rd respondent demanding the withheld emoluments. The petitioner received no response. The Court finds that she is entitled to a declaration that the 2nd and 3rd respondent pay her accrued emoluments from August 28, 2017 to July 6, 2018. That should, in the Court’s opinion, be the adequate remedy for the violation of the right to fair labour practices and fair remuneration because in money terms, that was the measure of her true loss.

10. To answer the 4th issue the Court finds that the petitioner has not shown how the 2nd and 3rd respondents were involved in the omission of her name in the initial gazette notice of August 28, 2017. The Court therefore returns that she has failed to show the violations of the Bill of Rights as alleged and as relating to that omission as against the 2nd and 3rd respondents. As already found by the Court, allegations and prayers against the 1st respondent in that regard ought to have been urged in the previous dispute unless a bar in that regard was established to have existed but which bar, is not shown by the petitioner, to have existed at all.

11. The Court has considered all the circumstances of the case including that the petitioner had really been unfairly excluded in the initial gazettement. That issue of unlawful omission had been resolved in the earlier proceedings between the parties. The 2nd and 3rd respondents have not been shown to have occasioned the omission in the petitioner’s initial exclusion in the gazetted nominated MCAs. In that consideration each party to bear own costs of the petition.

12. In conclusion the petition is hereby determined with orders:a.The declaration hereby issued that the 2nd and 3rd respondents are jointly or severally liable to pay the petitioner her accrued and unpaid monthly emoluments and such other benefits that are quantifiable as due to her from August 28, 2017 to July 6, 2018. b.Each party to bear own costs of the petition.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS THURSDAY 25TH MAY, 2023. BYRAM ONGAYAPRINCIPAL JUDGE