[2023] KEHC 25199 (KLR)

Nyamwange & 4 others v Clerk Kisii County Assembly & 6 others; Atika & 5 others (Interested Parties) (Petition 10 of 2023) [2023] KEHC 25199 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25199 (KLR)

FORMERLY NAIROBI HCHR PETITION NO. 258 OF 2023

Republic of Kenya

In the High Court at Kisii

Petition 10 of 2023

PN Gichohi, J

November 9, 2023

Between

Nancy Nyanganyi Nyamwange

1st Petitioner

Jackson Bogonko Ondiba

2nd Petitioner

Patrick Mogusu Momany

3rd Petitioner

John Machuka Ndege

4th Petitioner

Judy Omare Nyakerario

5th Petitioner

and

The Clerk Kisii County Assembly

1st Respondent

The Speaker Kisii County Assembly

2nd Respondent

Kisii County Assembly

3rd Respondent

The Governor, Kisii County Government

4th Respondent

Kisii County Government

5th Respondent

County Secretary, Kisii County Government

6th Respondent

Selection Panel for Recruitment of the Kisii County Public Service Board

7th Respondent

and

Benson Mochama Atika

Interested Party

County Public Service Boards National Consultative Forum

Interested Party

The Hon. Attorney General

Interested Party

The Clerk of the Senate

Interested Party

The Law Society of Kenya

Interested Party

The Kenya National Commission on Human Rights

Interested Party

Ruling

1. The 1st , 2nd, 3rd ,4th and 5th Petitioners jointly filed a Constitutional Petition together with a Notice of Motion Application dated 17th July 2023 under a certificate of urgency. Both the Petition and the Application were challenging the procedure used by the 1st , 2nd and 3rd Respondents to outs the Petitioners from the Public Service Board.

2. Among other orders, they sought in the interim and pending inter-partes hearing and determination of the Application, conservatory orders staying or suspending:-1. The implementation of Gazette Notice No. 8223 of 2023 and other or further activities and mandate of the Selection Panel for the Recruitment of Kisii County Public Service Board including advertising , shortlisting , interviewing , gazettement/or appointment and/ or any other recruitment process or activity either by the Governor , the County Secretary , the Kisii County Government or the Selection Panel of the Kisii Public Service Board.2. The implementation of the 3rd Respondent’s Resolution dated 25th April 2023 issued pursuant to the findings of the 3rd Respondent’s Select Committee ‘s Report to remove the Petitioners from office as members of the Kisii Public Service Board.3. The implementation of the Gazette Notice No. 5841 of 2023 and 6211 of 2023 issued by the 4th Respondent purporting to degazette the Petitioners from the Kisii Public Service Board.4. The directive by the 4th, 5th and 6th Respondents to remove the Petitioners from the from the Kisii County Government Payroll , to deny the Petitioners access to work premises or any other directive which interferes with the Petitioners’ mandate and discharge of their duties as members of the Kisii Public Service Board.

3. They also sought an order of consolidation of Kisumu ELRC JR No.E013 of 2023 with this Petition for purposes full and final determination of all the issues raised herein and therein.

4. Upon being served, the 4th , 5th , 6th and 7th Respondents filed a Preliminary Objection dated 24th July 2023 seeking dismissal of the Petition and accompanying Application with costs to them on the following grounds:-1. This Court lacks jurisdiction to hear this matter as the same falls under the Employment and Labour Relations Court since it is an industrial/employment dispute;2. Granting any orders in this matter would be in contempt to the Court of Appeal order by consent of parties issued on 05/07/2023 in Kisumu C.A. Civil Application No. E071 of 2021 (copy of order is hereto attached);3. This matter is sub judice as there is a similar matter pending in Kisumu ELRC Misc. Civil Application No. E013 OF 2023 between the same parties herein slated for judgment before Justice Radido on 10/08/2023;4. The Application dated 17/07/2023 and the Petition dated 17/07/2023 are in abuse of the court process as there are multiple other suits filed by the same parties over the same subject matter, the same being Kisumu ELRC No. E10 of 2023, E12 of 2023 and E13 of 2023.

5. The Preliminary Objection was canvassed by way of written submissions pursuant to the directions of this court.

The 4th , 5th , 6th and 7th Respondents Submissions 6. They filed their written submissions dated 2/8/2023. They submitted that they had raised a pure point of law on the question of jurisdiction in that the substratum of the dispute is the removal of the Petitioners from their employment as the chair ad members of the Kisii County Public Service Board in line with Section 58 (5) of the County Government Act that deals with the term of County Public Service Board, recruitment and the removal from office.

7. That primary issue for consideration in the Petition is in relation to the to the removal and termination of the employment contract of the Petitioners as the chair and members of the Board and their terminal benefits which this Court lacks jurisdiction to determine as the same is the sole reserve of the Employment and Labour Relations Court under Section 12 (1) of the ELRC Court Act .

8. Further, they submitted that it is a fact not in dispute, that there is a pending suit filed earlier and pending judgment being Kisumu ELRC Court JR No. 13 of 2023 between the principal parties over the same reliefs in relation to the termination of services of the Petitioners to the Board. They therefore urged the Court to strike out the present Petition for violating the principle of sub-judice under Section 6 of the Civil Procedure Act.

9. Lastly, they submitted that the Petition is an abuse of the process of the court in that the Petitioners filed this suit in spite of the pending proceedings in Kisumu ELRC JR No. E013 of 2023. Additionally, they submitted that the suit was an abuse of the process of the court due to the consent orders issued in the Court of Appeal in Kisumu Civil Application No. E071 of 2023 where the Court pronounced itself as follows:“In the result, the motion before us together with the Appeal, be and are hereby marked as abandoned by consent. Instead, the parties shall focus on the substantive dispute that is pending before the Superior Court, with a judgment expected from Radido J. Pending the substantive pronouncement from the court below, it is hereby ordered that the status quo currently obtaining shall be maintained, which shall mean that the applicants shall not be replaced in the interim.”

10. Relying on the pronouncements by Mativo J ( as he then was) in Satya Bhama Gandhi vs. Director of Public Prosecutions & 3 others [2018] eKLR, the Respondents urged this court to allow the Preliminary Objection on account of the fact that the Petition in its entirety is an abuse of process of the court.

The 1st, 2nd and 3rd Respondents’ Submissions 11. In support of the Preliminary Objection, they filed their written submissions dated 02/08/2023 and submitted that this Court lacks jurisdiction to entertain the Application and Petition in light of the provisions of Article 165 (5) (b) as read with Article 162 (2) (a) of the Constitution , as the issues raised by the Petitioners flow from an employment dispute.

12. While citing the case of United States International University vs. Eric Outa [2012] eKLR and the Court of Appeal decision of Professor Daniel N. Mugendi vs. Kenyatta University [2013] eKLR , they submitted that since the Employment and Labour Relations Court was vested with jurisdiction to include Constitutional Petition, this court should down its tools.

13. On whether the present dispute was res sub-judice, they maintained that the parties, the dispute and the reliefs sought in Kisumu ELRC JR No. E013 of 2023 scheduled for judgment on 10/8/2023,were similar to the present suit. In the circumstances and in light of Section 6 of the Civil Procedure Act, they contended that the present suit was an abuse of the process of the court. They urged this Court to allow the Preliminary Objection.

14. Lastly, they accused the Petitioners of contempt for disobeying the orders of the Court of Appeal in Civil Application No. E071 of 2023.

The Petitioners’ Submissions 15. In their submissions dated 1/8/2023, the Petitioners opposed the Preliminary Objection and submitted that the dispute did not squarely fall under Section 12 (1) of the Employment and Labour Relations Court Act. Citing the provisions of Article 165 (3), (6) and (7) of the Constitution, they submitted that in its entirety, the Petition touched on independent public bodies whose members were appointed and removed through special procedures. For that reason, they submitted that this was not an employment and labour relations dispute but a constitutional issue hence proper before this Court. In support of that argument, they cited the Court of Appeal decision of the Attorney General and 2 others vs Okiya Omtata Okoiti & 14 others [2020] eKLR.

16. Further, they submitted that the 4th, 5th, 6th and 7th Respondents failed to adduce sufficient evidence to demonstrate that the principle of res sub judice ought to be invoked in the circumstances herein.

17. They further argued that the Preliminary Objection failed to disclose how the present proceedings were in contempt of the orders of the Court of Appeal in Kisumu Civil Application No. E071 of 2023.

18. Lastly, they submitted that the Preliminary Objection could not be sustained as the Court would be compelled to interrogate the facts by way of a trial. As a consequence, the Petitioners urged this court to dismiss the Preliminary Objection for failing to raise pure points of law. In support of this argument, they cited several decisions including Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA.

Determination 19. This Court has considered the Preliminary Objection and the rival submissions by parties together with the authorities cited therein. While laying down the principles as to what constitutes a preliminary objection, the Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd (supra) stated: -“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” [Emphasis added].

20. On the issue as to whether the Petition is an abuse of the court process for being res sub judice , Section 6 of the Civil Procedure Act provides bars courts from proceeding with a trial of a suit or proceeding where a previously instituted pending suit or proceedings is directly and substantially similar in issue between the same parties, litigating under the same title pending determination.

21. The Supreme Court of Kenya in Kenya National Commission on Human Rights vs. Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties [2020] eKLR elaborately discussed this doctrine as follows:“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.

22. In this case, the Petitioners do not dispute that they filed Kisumu ELRC JR No. E013 of 2023 . Their issue is that the issues here are not squarely a labour dispute. A perusal of the Petition before this Court reveals that at page 161 to 170, the Petitioners annexed orders issued pursuant to the said Kisumu ELRC JR No. E013 of 2023 where the ex-parte Applicants are the Petitioners herein and the 1st , 2nd, 3rd and 4th Respondents therein are the 1st, 2nd, 3rd and 4th Respondents herein. The reliefs sought therein are similar to those sought in this Petition. On that ground, the Petition herein is a violation of Section 6 of the Civil Procedure Act and that is a point of law.

23. On Whether the suit was improperly filed before the High Court as an employment and labour relations dispute, the gist of the Petition is that the 1st Interested Party filed a Petition to the 1st Respondent on 6/3/2023 to remove the Petitioners from their offices as members of the Kisii County Public Service Board. That Petition was presented to the 3rd Respondent’s Committee on Labour, Manpower and Social Welfare.

24. Thereafter, the Petitioners herein were served with the Petition and Summons inviting their responses and to be heard between 12/3/2023 and 17/3/2023. The Petitioners contended that the said Petition was in breach of certain provisions of the Kisii County Assembly Standing Orders, the Petition to County Assemblies (Procedure) Act2020, several statues and the Constitution.

25. Ultimately, the Petition was heard recommending that the Petitioners be removed from office as members of the Kisii County Public Service Board. It is those actions that prompted the Petitioners to file the present Petition on grounds that the entire process was unconstitutional ab initio and failed to meet the statutory threshold.

26. Article 162 (2) (a) of the Constitution establishes the Employment and Labour Relations Court. To give effect to its inception, the Employment and Labour Relations Court Act was subsequently enacted giving effect to the provisions of Article 162 (3) of the Constitution. Section 12 (1) of the Employment and labour Relations Act provides that:-“The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance to Article 162 (2) of the Constitution and the provisions of this Act or any other written law which extends to the jurisdiction of the Court relating to employment and labour relations…”

27. As earlier stated herein, the Petitioners herein complained of acts or lack thereof by the 1st and 3rd Respondents when they were tasked to determine the removal of the Petitioners from their offices as members of the Kisii County Public Service Board. The 3rd Respondent’s Committee on Labour, Manpower and Social Welfare ultimately recommended that the Petitioners be removed from office as members of the Kisii County Public Service Board.

28. Effectively, the Petitioners challenge the manner, procedure and constitutionality in which they were removed from office in which they earned a salary. They lost their jobs as a result of the impugned process. The ultimate finding of the Committee was termination of the Petitioner’s employment and have their terminal benefits processed. Purposefully, I find that the Petition bears the attributes of an employment and labour dispute. This is because the ultimate finding of the Committee was to terminate their employment and have their terminal benefits processed.

29. Indeed, one of the reliefs sought by the Petitioners is for compensation in the form of salaries, allowances and other emoluments. The several reliefs and averments lead to conclusion that the issues raised are both constitutional and labour related and therefore , this Court does not have the special jurisdiction as contemplated in Article 162 (2) (a) of the Constitution.

30. This Court associates itself with the sentiments of the Court in Honey Creepers Investments Limited vs. Cab Investments Company Ltd & 4 others [2020] eKLR which cited the following finding by Mativo J (as he then was) that:“…the jurisdiction of the Environment and Land Court is limited to the disputes contemplated under Article 162(2)(b) of the Constitution and Section 13 of the Environment and land Court Act. In this regard, my view is that the intention of the Constitution is that if an issue arises touching on land in respect of its use, possession, control, title, compulsory acquisition or any other dispute touching on land, then this Court has no jurisdiction. My strong view is that this suit ought to have bene transferred to the proper court the moment the Constitution of Kenya 2010 divested this Court the jurisdiction to hear the case. Buttressed by the provisions of the Constitution and Section 13 of the Environment and Land Court Act, I am clear in my mind that his Court cannot properly entertain the application before me. … Even with that clear-cut jurisdictional demarcation on paper, sometimes matter camouflaged in what may on the surface appear to be a serious constitutional issues or Judicial Review applications or other matters falling in other High Court division may, on a closer scrutiny reveal otherwise – that the germane of the application is actually a labour dispute or land issue falling squarely in the forbidden sphere of the specialized courts! Such is the nature of the application before me. A boundary dispute or enforcing an order relating to a boundary dispute falls squarely in the forbidden sphere of the specialized courts, namely, the Environment and Labour Court.The drafters of the Constitution were very clear on the limits of this Court’s jurisdiction and the jurisdiction of the Courts of equal status.”

31. Jurisdiction is paramount and remains the cornerstone of the administration of justice. Therefore, this Court finds that the Preliminary Objection is on points of law and is merited. It is allowed in that the Petition and the Application dated 17th July 2023 are struck out with no orders as to costs.

DATED, SIGNED AND DELIVERED (VIRTUALLY) AT KISII THIS 9TH NOVEMBER, 2023. PATRICIA GICHOHIJUDGEIn the presence of:Mr. Akhaabi and Mr. Ochoki for PetitionersMr. Onserio for 1st 2nd and 3rd RespondentMr. Nyandieka for 4th , 5th , 6th and 7th RespondentMr. Otieno for 1st Interested PartyN/ A for 2nd to 6th Interested Party