[2023] KEELRC 1128 (KLR)
The court held that, in light of binding Court of Appeal decisions, the Employment and Labour Relations Court lacks jurisdiction to hear and determine matters where there is no employer/employee relationship between the parties. Despite the court's disagreement with the appellate decisions, it is bound to follow...
Source-derived case information.
- Citation
- [2023] KEELRC 1128 (KLR)
- Parties
- Applicant: Mustafah Otieno Ochieng; Respondent: The Governor Bomet County; Respondent: Bomet County Government; Respondent: Bomet County Assembly; Respondent: Bomet County Public Service Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Employment and Labour Relations Petition E015 of 2022
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- petition struck out for lack of jurisdiction
- Judges
- DN Nderitu
- Legal Topics
- Jurisdiction of Elrc, Employer Employee Relationship, Preliminary Objection, Public Interest Litigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mustafah Otieno Ochieng
Applicant
The Governor Bomet County
Respondent
Bomet County Government
Respondent
Bomet County Assembly
Respondent
Bomet County Public Service Board
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear the petition in the absence of an employer/employee relationship.
- 2 Whether the petition should be transferred to the High Court upon striking out for want of jurisdiction.
- 3 Whether costs should be awarded against the petitioner in a public interest litigation.
Ratio Decidendi
The court held that, in light of binding Court of Appeal decisions, the Employment and Labour Relations Court lacks jurisdiction to hear and determine matters where there is no employer/employee relationship between the parties. Despite the court's disagreement with the appellate decisions, it is bound to follow them. Consequently, the court must strike out the petition for want of jurisdiction and cannot make any further orders, including transferring the matter to the High Court. Given the public interest nature of the litigation, the court found it would be punitive to award costs against the petitioner and therefore made no order as to costs.
Court Disposition
petition struck out for lack of jurisdiction
Orders
- The petition is struck out for lack of jurisdiction.
- No order as to costs.
Full Case Text
Judgment text and source record
51 paragraphs
Ochieng v Governor Bomet County & 3 others; Langat & 10 others (Interested Parties) (Employment and Labour Relations Petition E015 of 2022) [2023] KEELRC 1128 (KLR) (9 May 2023) (Ruling)
Neutral citation: [2023] KEELRC 1128 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kericho
Employment and Labour Relations Petition E015 of 2022
DN Nderitu, J
May 9, 2023
Between
Mustafah Otieno Ochieng
Petitioner
and
The Governor Bomet County
1st Respondent
Bomet County Government
2nd Respondent
Bomet County Assembly
3rd Respondent
Bomet County Public Service Board
4th Respondent
and
Erich Cheruiyot Langat
Interested Party
Dr John Keter Kiprotich
Interested Party
Milcah Chepkoech
Interested Party
Paul Mutai Kikemoi
Interested Party
Pauline Chepkemoi Langat
Interested Party
Solomon Kimetto Kiprotich
Interested Party
Dr Kibet Sitienei
Interested Party
Erick Chepkowny Kipyegon
Interested Party
Simeon Langat
Interested Party
Dr Joseph Sitonik
Interested Party
Joseph Kipkirui Kirui
Interested Party
Ruling
1. The 4th Respondent raised a Preliminary objection to the jurisdiction of this court to hear and determine the matter based on the fact that there is no employer/employee relationship between the Petitioner and the Respondents and even the Interested parties.
2. In two recent decisions National Social Security Fund Board of Trustees V Kenya Tea Growers Association & 14 Others (Civil Appeal No 656 of 2022)(2023) eKLR and Civil Appeal No 136 of 2023 as consolidated with 137 of 2023 -The Clerk Nakuru County Assembly & Others V Kenneth Odongo & Others (2023) eKLR the Court of Appeal has held that this court (ELRC) has no jurisdiction where there is no employer/employee relationship.
3. Although this court does not agree with that holding, the decisions are binding on this court.
4. For the foregoing reason, this court has to down its tools in this matter See Nyarangi J in Owners of Motor Vessel Lillian “S” V Caltex Kenya Ltd(1989) IKLR. This petition is hence struck out for lack of jurisdiction.
5. On the plea that this court makes an order for transfer of this cause to the High Court, this court holds that for lack jurisdiction it cannot make any further steps in the cause including making an order of transfer of the cause.
6. On costs, this is a public interest litigation and it would be punitive to order the Petitioner to meet costs yet had the petition succeeded it would have benefited the public and not the Petitioner personally.
7. For all the foregoing, the petition is struck out for lack of jurisdiction with no orders as to costs.
DATED, DELIVERED VIRTUALLY, AND SIGNED AT NAKURU THIS 9THDAY OF MAY, 2023. .............................DAVID NDERITUJUDGE