[2023] KEHC 24847 (KLR)

Orogo v Chairman Board of Directors Kenya Revenue Authority & 2 others (Petition E004 of 2023) [2023] KEHC 24847 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24847 (KLR)

Republic of Kenya

In the High Court at Busia

Petition E004 of 2023

WM Musyoka, J

November 3, 2023

Between

Peter Kabinga Orogo

Petitioner

and

The Chairman Board of Directors Kenya Revenue Authority

1st Respondent

The Commmissioner General Kenya Revenue Authority

2nd Respondent

The Attorney General

3rd Respondent

Ruling

1. On 16th October 2023, the petitioner lodged a petition herein, against the respondents, dated 12th October 2023. It was filed contemporaneously with a Motion, of even date. The petition seeks various declarations and injunctive relief, with respect to recruitment of staff of various cadres by the Kenya Revenue Authority, on grounds that there were certain contraventions of the Constitution of Kenya, on account of lack of respect for ethnic diversity and discrimination on account of age. The Motion seeks conservatory orders, to stop a contemplated recruitment of staff, pending hearing and determination of the Motion and the petition.

2. In the supporting affidavit, sworn on 11th October 2023, the petitioner avers that the recent recruitment of 1,400 revenue service assistants revealed that 56% of them came from 2 the ethnic communities, while 40% came from the rest of the country, something which was disproportionate to the last population census in the country. He argues that the same was skewed in favour of the 2 communities, and also 2 constituencies associated with the 1st respondent. He avers that the constitutional principle of proportionality was breached. He avers that the planned recruitment of senior and other staff was similarly primed to be skewed in favour of certain individuals, areas and communities. He avers that the same was also discriminatory against persons of a certain age. He avers that he is petitioning the court to investigate, examine and determine the recruitment processes and outcomes. He makes a pitch for conservatory orders. He has attached a document, said to be a list of the persons recruited by the Kenya Revenue Authority as revenue service assistants; an extract from the 2019 Kenya Population and Housing Census, showing distribution of the population by administrative units, the Kenya Revenue Authority advertisements for recruitment of senior and other staff; and the Kenya Revenue Authority advertisements for graduate assistants and border control assistants, which have age caps.

3. The Motion was placed before me, on 16th October 2023, under certificate of urgency. I directed that the Motion and the petition be served, and the Motion be heard inter partes on 30th October 2023. I also granted, in the interim, conservatory orders pending the inter partes hearing.

4. The respondents were served with the Motion and petition, and a formal order extracted from the orders made on 16th October 2023. There is an affidavit of service to that effect, sworn on 27th October 2023, by Peter Anyangu Omukweyi, and filed herein on even date.

5. The respondents replied to the Motion, through an affidavit sworn by the 1st respondent, on 27th October 2023. He avers that the case turns purely on employment issues, and the High Court lacks jurisdiction to hear and determine it, by dint of Article 165(5)(b) of the Constitution. He also avers that, although the High Court, when clothed with jurisdiction, can hear any matter wherever stationed, due regard ought to be given to territorial jurisdiction, and in the instant case, the Kenya Revenue Authority is headquartered and based at Nairobi, and there was no logical reason for the cause to have been filed at Busia, by a litigant based at Nairobi, and whose Advocates were also based at Nairobi. He argues that the conservatory orders sought in the Motion were final in nature, and ought not be made at the interlocutory stage, as they are the exact replica of those sought in the petition, and, if granted at the interlocutory stage, would amount to driving the respondents from the seat of justice. He further argues that no prima facie case has been made out for grant of the orders sought. He submits that the public would suffer, should the orders be made, as the impugned recruitments are meant to serve the public, and grant of the orders would cripple the operations of the Kenya Revenue Authority, leading to loss of revenue, and the stalling of some Government projects. He submits that the petitioner would suffer no prejudice, as, should the petition be successful in the end, the court can still annul the entire process. He further argues that the petition is premature, as the recruitment process is at its infancy, for shortlisting of candidates is yet to be done. He avers that the Kenya Revenue Authority is always guided by its Human Resource Policies and Diversity Management Policy, in recruitments, and that it is not true that there is no ethnic diversity and regional balance policy in recruitment by the Kenya Revenue Authority. He discloses that there is another petition in Nairobi, on the issue of the recruitment of the revenue service assistants, being Operation Linda Jamii vs. Kenya Revenue Authority & 1 other Nairobi HCCHRPET No. E388 of 2023. He avers that the 2 ethnic communities, alleged to have benefitted inordinately from the recruitment of revenue service assistants, had the highest number of applicants. He further argues that the recruitment policy provides for transparency and fairness, that attracts and appoints the highest performing applicants. He denies that there was discrimination based on age, saying that the Kenya Revenue Authority is targeting fresh graduates. He states that at the opportune moment the respondents shall demonstrate that the recruitment of revenue service assistants was done through a competitive process, underpinned by merit, equity, diversity and transparency. He argues that the court can only interrogate and determine the actions and omissions of the Kenya Revenue Authority based on tangible evidence and response at the hearing of the petition, and not at this preliminary stage. He argues that the recruitment process ought to be allowed to proceed based on public interest. He has attached copies of the Kenya Revenue Authority Approved Human Resource Policies of 1st July 2023; the pleadings in Operation Linda Jamii vs. Kenya Revenue Authority & 1 other Nairobi HCCHRPET No. E388 of 2023, and a public notice on the deployment of revenue service assistants.

6. When the matter came up for hearing inter partes, on 30th October 2023, the petitioner sought to have the matter adjourned, on grounds that he had been served late with the respondents reply, and wished to respond on certain issues. The respondents opposed that plea, arguing that they were raising a preliminary point of law, on jurisdiction, founded on Article 165(5)(b) of the Constitution, with respect to the jurisdiction of this court, asserting that if there was no jurisdiction, then the court could not proceed. The petitioner said that given a few days, he would be in a position to file written submissions and a reply. On the filing of the petition at Busia, the respondents argued that there was no justification for the petition to be at Busia, and it could be returned to Nairobi, where there was another pending petition on the same or similar issues. The petitioner countered that by arguing that the High Court had countrywide jurisdiction.

7. I directed that the issue of jurisdiction be determined first, and I allowed the parties 3 days to file and serve written submissions, on jurisdiction, and I reserved the matter for ruling on 3rd November 2023. Both sides complied, and filed written submissions and authorities, on 31st October 2023.

8. I will start with the submissions by the respondents, as it is them who have raised the preliminary objection. It is submitted that the single issue in the petition is whether the recruitment meets the dictates of the Constitution. Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1 [1989] eKLR (Nyarangi, Masime & Kwach, JJA), Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others [2012] eKLR (Mutunga CJ/P, Tunoi, Ojwang, Wanjala & Ndung’u, SCJJ) and Republic vs. Karisa Chengo & 2 others (Maraga CJ/P, Mwilu DCJ/VP, Ibrahim, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), on what a court ought to do when it establishes that it has no jurisdiction, are cited. It is submitted that Article 162(2) of the Constitution has established a court, of as status equal to that of the High Court, to handle disputes relating to employment and labour relations, and Parliament is instructed to establish such a court, and to determine its jurisdiction and functions. The Employment and Labour Relations Court Act, No. 20 of 2011, was subsequently passed to establish the Employment and Labour Relations Court. Section 12 of the Employment and Labour Relations Court Act is cited, on the exclusive jurisdiction of that court on the disputes referred to under Article 162(2) of the Constitution, and any other law extending jurisdiction to it. Section 87 of the Employment Act, No. 11 of 2007, is cited as one such law. United States International University (USIU) vs. Attorney General [2012] eKLR (Majanja, J) is cited, on the jurisdiction of the High Court, regarding interpretation of the Constitution and enforcement of fundamental rights and freedoms, with respect to matters falling under the jurisdiction of the Employment and Labour Relations Court. It is argued that the petition is about the respondents violating or about to violate Article 27 of the Constitution. Jane Achieng & another vs. University of Nairobi [2015] eKLR (Ndolo, J), is cited, on employment and labour rights being secured as part of the Bill of Rights under Article 41 of the Constitution. It is submitted that the petition is about recruitment of revenue service assistants and senior and other staff of the Kenya Revenue Authority, and the petitioner is seeking declarations that the same is unconstitutional. It is argued that since what is sought is interpretation as to whether fundamental rights ancillary and incidental to employment and labour relations have been violated, then the High Court would lack jurisdiction to entertain the matter, as the same is the preserve of the Employment and Labour Relations Court.

9. On his part, the petitioner submits that he has made the petition in the capacity of a person with an obligation to respect, uphold and defend the Constitution; and claiming rights of a class of persons whose rights have been violated or infringed or a threatened with such violation; and as a person claiming that the Constitution has been contravened or is threatened with violation. It is submitted that Article 165(3) of the Constitution vests the High Court with discretion to determine whether a right or fundamental freedom in the Bill of Rights has been infringed or violated or threatened. He further submits that under Article 165(3)(d), the High Court is vested with jurisdiction to hear any question on the interpretation of the Constitution, including whether anything said to be done under the authority of the Constitution or any law is inconsistent with or in contravention of the Constitution. Article 23(1) is cited as vesting the High Court with jurisdiction to hear and determine applications for redress or denial or violation or infringement of a right or fundamental freedom. It is submitted that under Article 165, the High Court should not exercise jurisdiction with respect to matters falling within the jurisdiction of the Employment and Labour Relations Court, and it is asked whether the Employment and Labour Relations Court has jurisdiction to determine the matters raised in the instant petition. The petitioner has cited Article 162(3) of the Constitution and section 12 of the Employment and Labour Relations Court, on jurisdiction of the Employment and Labour Relations Court, and Nick Githinji Ndichu vs. Clerk Kiambu County Assembly & another [2014] eKLR (Nduma, J), Nakuru County Assembly vs. Kenneth Odongo & others Nakuru CACA No. E136 of 2022 (Sichale, Ochieng & Achode, JJA), National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 others [2023] KECA 80 (KLR)(Okwengu, Warsame & Mativo, J), to submit that the jurisdiction of the Employment and Labour Relations Court is limited to cases where there is a subsisting employer-employee relationship, and does not extend to cases where such a relationship does not arise.. Public Service Commission & 4 others vs. Cheruiyot & 20 others [2022] KECA 15 (KLR)(Musinga, W. Karanja & Murgor, JJA) is cited to make the point that in the absence of an employer-employee relationship, the High Court would have jurisdiction to entertain and determine the question whether a right or fundamental freedom in the Bill of Rights is being violated or threatened with such violation. Regarding the territorial jurisdiction of the court, Article 162(3) of the Constitution and Rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, are cited, and it is argued that this court has jurisdiction over the matter. Trusted Society of Human Rights Alliance vs. Nakuru Water and Sanitation Services Company & another [2013] eKLR (Ongaya, J), JKM vs. COO [2014] eKLR (Kimaru, J) and Peter Ochola Omburo vs. Inter-Diocesan Properties Limited [2016] eKLR (Marete, J) are cited for the submission that the High Court has territorial jurisdiction throughout Kenya. On sub judice, with respect to Operation Linda Jamii vs. Kenya Revenue Authority & 1 other Nairobi HCCHRPET No. E388 of 2023, section 6 of the Civil Procedure Act, Cap 21, Laws of Kenya; Thika Min Hydro Co. Ltd vs. Josphat Karu Ndwiga [2013] eKLR (Olao, J), and Republic vs. Registrar of Societies - Kenya & 2 others ex parte Moses Kirima [2017] eKLR (Odunga, J) are cited, to support the proposition that the instant petition is not sub judice Operation Linda Jamii vs. Kenya Revenue Authority & 1 other Nairobi HCCHRPET No. E388 of 2023, as the 2 are not similar, and address different grievances.

10. The principal preliminary issue raised by the respondents is on jurisdiction. The question is, between the High Court and the Employment and Labour Relations Court, which one has jurisdiction to handle the petition before me? If the answer to that question is the High Court, I would then have jurisdiction to hear and determine the same; if it is the Employment and Labour Relations Court, then I would have no jurisdiction to handle it.

11. Both parties are agreed, from the provisions of the Constitution and the Employment and Laboure Relations Court Act, and the case law, that they have cited in their respective written submissions, that jurisdiction of the court is determined by the law, specifically the Constitution and the relevant statutes. From the Constitution, it is not disputed that Article 162(2) is the primary source of jurisdiction for the Employment and Labour Relations Court; while the Employment and Labour Relations Court Act is the statute which establishes that court and defines its jurisdiction. It is also not disputed that Article 165 of the Constitution defines the jurisdiction of the High Court; gives it an unlimited original jurisdiction in civil and criminal matters, except for the matters reserved for the courts contemplated under Article 162(2); and confers it with jurisdiction to determine questions around violation or contravention of constitutional rights and fundamental rights, and interpretation of constitutional provisions.

12. The point of departure, for the parties, is on where jurisdiction lies, upon constitutional questions arising in the disputes contemplated under Article 162(2), so far as employment and labour relations are concerned. I have seen a number of determinations, amongst the decisions cited above, from the Employment and Labour Relations Court, which take the position that that court has equal status with the High Court, and has jurisdiction to entertain constitutional petitions turning on employment and labour relations. Those decisions state the position that the respondents are asserting, such as Trusted Society of Human Rights Alliance vs. Nakuru Water and Sanitation Services Company & another [2013] eKLR (Ongaya, J) and Peter Ochola Omburo vs. Inter-Diocesan Properties Limited [2016] eKLR (Marete, J).

13. The prevailing or conventional legal position on this appears to be that stated by the Court of Appeal, in recent decisions, all of which turn on appeals against determinations of the Employment and Labour Relations Court, on these issues. I am referring to such decisions as Nakuru County Assembly vs. Kenneth Odongo & others Nakuru CACA No. E136 of 2022 (Sichale, Ochieng & Achode, JJA)(unreported), Public Service Commission & 4 others vs. Cheruiyot & 20 others [2022] KECA 15 (KLR)(Musinga, W. Karanja & Murgor, JJA) and National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 others [2023] KECA 80 (KLR)(Okwengu, Warsame & Mativo, JJ). 3 points emerge from these decisions. One, the Employment and Labour Relations Court has jurisdiction to determine constitutional questions, even in a constitutional petition, so long as they fall within the matters that are subject to the jurisdiction conferred on that court by Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act, in terms of arising in the context of employment and labour relations. Two, the jurisdiction conferred on that court, by Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act, contemplates existence an employer-employee relationship between the parties, in the absence of which the Employment and Labour Relations Court would have no jurisdiction to entertain such constitutional petitions or questions. Three, that in the absence of an employer-employee relationship between the parties, only the High Court, by dint of Articles 23 and 165 of the Constitution, would have jurisdiction to address such constitutional petitions or questions.

14. The decisions in National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 others [2023] KECA 80 (KLR)(Okwengu, Warsame & Mativo, JJ) and Nakuru County Assembly vs. Kenneth Odongo & others Nakuru CACA No. E136 of 2022 (Sichale, Ochieng & Achode, JJA)(unreported) were decided in the course of this year, 2023. National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 others [2023] KECA 80 (KLR)(Okwengu, Warsame & Mativo, JJ), came first, on 3rd February 2023, where it was said:“35… The ELRC Act was enacted to resolve employer-employee disputes as provided for by article 162(a) of the Constitution … Decided cases are in agreement that constitutional issues can be determined by the ELRC only if they arise from an employer-employee dispute…36…37… the ELRC bench fell into grave error when it failed to appreciate that the issue before it fell within the jurisdiction of the High Court as prescribed under article 163(3)(d)(i) of the Constitution. Further, the bench fell into error when it failed to appreciate that authorities … are replete on the fowling positions – (a) the constitutional issues must arise from an employer-employee dispute for the ELRC to assume jurisdiction, and (b) employment cases are not the appropriate mechanism for ventilation of grievances of litigant’s constitutional issues except where the issues arise in an employer-employment dispute…”

15. Nakuru County Assembly vs. Kenneth Odongo & others Nakuru CACA No. E136 of 2022 (Sichale, Ochieng & Achode, JJA)(unreported) followed, on 14th April 2023, where the court stated:“Having found that there was no employer/employee relationship between the appellants and the 1st respondent, nor an employment and labour relations dispute as contemplated by Article 162(2) of the Constitution or Section 12(1) of the E&LRC Act, it is our view that the court fell into error when it proceeded to assume and arrogate unto itself, a jurisdiction that it did not have…… Parliament in line with the letter and spirit of Article 162(3) of the Constitution enacted the E&LRC Act and pursuant to Section 12(2) of the Act, the same expressly provided for persons who could approach the court …From the constitutional provisions, it is evident that the High Court has exclusive original jurisdiction to make a determination whether a right or a fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened or to interpret the Constitution. The provisions of Article 22 of the Constitution must be read together with the provisions of Article 23. It is now trite law that the specialized courts established pursuant to Article 162(2) of the Constitution have jurisdiction to interpret the Constitution only on issues that arise in the context of employment and labour matters or in environment matters, as the case may be.”

16. I have closely perused the petition herein, and I have found no allegation that the petitioner and the Kenya Revenue Authority are or were in any form of an employer-employee relationship, and, in his response, the 1st respondent has not alluded to any such employer-employee relationship between the petitioner and the Kenya Revenue Authority. In the absence of such a relationship, and going by Nakuru County Assembly vs. Kenneth Odongo & others Nakuru CACA No. E136 of 2022 (Sichale, Ochieng & Achode, JJA)(unreported), Public Service Commission & 4 others vs. Cheruiyot & 20 others [2022] KECA 15 (KLR)(Musinga, W. Karanja & Murgor, JJA) and National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 others [2023] KECA 80 (KLR)(Okwengu, Warsame & Mativo, JJ), the Employment and Labour Relations Court has no jurisdiction over the petition herein, and the High Court is properly seized of it.

17. Regarding the pleadings, the petitioner anchors the petition on Articles 3(1), 10, 21(3), 27(1)(2)(4)(5), 56(a)(b)(c), 232(1)(i)(ii) and 260 of the Constitution. He brings it, not as an employee of the Kenya Revenue Authority, but as a Kenyan citizen, who seeks to have the national values and principles espoused in Article 10 upheld, particularly with regard to inclusivity (Article 21), equality (Article 27), affirmative action in favour of marginalized groups (Article 56) and adherence to the values and principles of public service (Article 232). His case is that the recruitment of the revenue service assistants offended Articles 10, 27, 56 and 232 of the Constitution; and he raises questions about discrimination based on age, in the contemplated recruitment. The constitutional questions for which he seeks answers are around these constitutional provisions and issues, and the reliefs sought are similarly tailored around the same provisions. The pleadings in the instant petition, dwell on constitutional questions, that can only be dealt with by the High Court, and in respect of which the Employment and Labour Relations Court has no jurisdiction, as they go beyond the narrow issues of employment and labour relations, contemplated under Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act.

18. In Vuyile Jackson Gcaba vs. Minister for Safety and Security First & others CCT 64/08 [2009] ZACC 26 (Moseneke DCJ, Van der Westhuizen, Cameron, Mokgoro, Ngcobo, Nkabinde, O’Regan, Skweyiya & Yacoob, JJ), the court said as follows, on pleadings as basis for determining jurisdiction:“Jurisdiction is determined on the basis of the pleadings ... and not the substantive merits of the case … In the event of the court’s jurisdiction being challenged at the outset, the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish the basis of the applicant’s claim, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognizable only in another court.”

19. The issue of territorial jurisdiction arose, in the context that the petition should have been filed where the Kenya Revenue Authority is headquartered. The petitioner has countered that, in his supplementary affidavit, sworn on 31st October 2023, where he claims to be a resident of Busia. I see no evidence of that, for he has attached no document to show his connection with Busia. I note that, although he describes himself as a resident of Busia, he still uses a Nairobi address in that affidavit. Is territorial jurisdiction a critical factor here? I do not think so. Whereas I agree that a suit or cause ought to be filed at the court nearest to where the cause of action arose, and in this case, it arose at Nairobi, where the petitioner appears to reside, that of itself does not take away the jurisdiction of the High Court. The High Court has unlimited countrywide jurisdiction, as stated in JKM vs. COO [2014] eKLR (Kimaru, J).

20. On the non-disclosure of the pendency of Operation Linda Jamii vs. Kenya Revenue Authority & 1 other Nairobi HCCHRPET No. E388 of 2023, the petitioner suggests that the respondents are raising an issue of sub judice. A sub judice argument would suggest that the second suit or cause ought to be stayed. I do not understand the respondents to be taking that route. What I understand them to say is that the same turns on similar facts, and the instant petition, perhaps ought to be transferred to Nairobi, to be handed together with Operation Linda Jamii vs. Kenya Revenue Authority & 1 other Nairobi HCCHRPET No. E388 of 2023. Are the 2 petitions similar? I have read through the petition in Operation Linda Jamii vs. Kenya Revenue Authority & 1 other Nairobi HCCHRPET No. E388 of 2023, which is exhibited in the affidavit of the 1st respondent. The same is limited to deployment of the revenue service assistants recently recruited by the Kenya Revenue Authority. The said petition does not challenge the recruitment of the said revenue service assistants, and it does not seek declarations with relation to the said recruitment. The orders sought are around the deployment of the said revenue service assistants, on grounds of lack of public participation in the decision to deploy them, and the possibility of the said revenue service assistants using brutal force against citizens in execution of their duties. That appears to be radically different from the issues raised in the instant petition on the same revenue service assistants. The petitioner herein challenges their recruitment, on grounds of lack of ethnic diversity and regional balance, and seeks a declaration that the recruitment was unconstitutional. The petition in Operation Linda Jamii vs. Kenya Revenue Authority & 1 other Nairobi HCCHRPET No. E388 of 2023 does not target the other issue raised in the instant petition, the contemplated recruitment of other staff of various cadres by the respondents. The 2 petitions, therefore, turn on different constitutional questions, and can quite comfortably be disposed of separately.

21. In the end, I find no merit in the preliminary objection raised by the respondents, and I hereby disallow the same. To move the matter forward, I do hereby direct that the Motion, dated 12th October 2023, be disposed of by way of written submissions, to be filed and exchanged within 14 days. The matter shall be mentioned virtually, on 20th November 2023, for compliance, and further directions. The interim orders shall remain in force till 20th November 2023. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED VIA EMAIL, FROM BUSIA, THIS 3RD DAY OF NOVEMBER 2023W. MUSYOKAJUDGEAdvocatesMr. Ambani, instructed by Lukorito & Company, Advocates for the petitioner.Mr. Ireri and Mr. Muhoro, instructed by the Attorney General, for the respondents.