[2022] KEHC 13389 (KLR)

Owalla v Siaya County Assembly & 2 others (Constitutional Petition E002 of 2022) [2022] KEHC 13389 (KLR) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13389 (KLR)

Republic of Kenya

In the High Court at Siaya

Constitutional Petition E002 of 2022

RE Aburili, J

October 4, 2022

IN THE MATTER OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE COUNTY GOVERNMENT ACT AND IN THE MATTER OF FAIR ADMINISTRATIVE ACT, 2015 AND IN THE MATTER OF SECTION 34(3) OF THE PUBLIC SERVICE COMMISSION ACT, 2017 AND IN THE MATTER OF SECTION 8 & 9 OF THE LAW REFORM ACT, CAP 26 LAWS OF KENYA AND IN THE MATTER OF VIOLATION OF A COURT ORDER

Between

Chrisphine Omollo Owalla

Petitioner

and

Siaya County Assembly

1st Respondent

Siaya County Assembly Service Board

2nd Respondent

Ag. Clerk of the County Assembly of Siaya

3rd Respondent

Ruling

1. The Petitioner/Applicant is a pro se litigant and appears to be a Public spirited litigant. He filed this petition dated 19/9/2022, simultaneous with a Notice of Motion under Certificate or Urgency, seeking the following orders:a.Spentb.That pending the hearing and determination of this application interpartes or further orders, this Honourable court be pleased to issue an order of temporary injunction stopping the Respondents (Siaya County Assembly, Siaya County Assembly Service Board and Acting Clerk of the County Assembly of Siaya) from holding a meeting scheduled for 20th September 2022 or any other meeting convened by the 3rd Respondent;c.That pending the hearing and determination of this petition, this Honourable court be pleased to issue an order of injunction stopping the Respondents from holding any meeting convened by the 3rd Respondent.

2. The grounds upon which the application is predicated are contained in the face of the Notice of Motion which is also supported by an affidavit sworn by the applicant/Petitioner Chrispine Omollo Owalla. He claims that on 1/3/2019, the 1st and 2nd Respondents suspended the substantive Clerk Mr. Isaac Felix Olwero on allegation of misconduct and in his place, appointed an acting clerk.

3. That Mr. Felix Otieno then filed Petition No. 16/2019 before the Employment and Labour Relations Court at Kisumu, challenging his suspension.

4. That on 14/4/2022, the Employment and Labour Relations Court in Petition No. 16/2019 delivered a judgment holding that the process leading to the removal and or suspension of the said Isaac Felix Olwero was unprocedural and ordered that the said Isaac Felix Olwero be reinstated as the substantive Clerk of the 1st Respondent;

5. That the 1st and 2nd Respondents have refused to implement the said Employment and Labour Relations Court decision of 14/4/2021 and have continued to have the 3rd Respondent as Acting Clerk of the 1st Respondent;

6. That the 3rd Respondent despite being in the office illegally and unconstitutionally, has issued a Notice dated 13/9/2022 for the applications to the position of the Speaker of the 1st Respondent, election of the 1st Respondent Speaker and for convening the 1st sitting of the 1st Respondent County Assembly of Siaya respectively.

7. That unless the 1st sitting of the 1st Respondent Assembly due on 20/9/2022 is stopped, then the Rule of Law and Constitution will be subjected to serious violation; and that this application is made in good faith and without any undue delay.

8. The affidavit in support reiterates the grounds outlined above, annexing a letter of suspension dated 1/3/2019 addressed to Mr. Isaac Felix Olwero, County Assembly Clerk; Decree in Kisumu ELRC Petition No. 16/2019 dated 14/4/2021, Notice dated 13/9/2022 for Election of County Assembly Speaker, Siaya County Assembly, Notice of submission of Memoranda.

9. When the matter was placed before me under Certificate of urgency on 19/9/2022, I declined to certify it as urgent and I provided reasons for my refusal being, that the Petition is founded upon a judgment and decree of an ELR Court which is a decree executable by the ELR Court and not by way of a petition to this court; that to grant the orders sought would amount to enforcing decrees and judgment and orders of the Employment and Labour Relations Court issued in Kisumu ELRC Petition No. 16/2019. I therefore directed the applicant/Petitioner to serve the Respondents for interpartes consideration on 26/9/2022. Unforeseen, 26/9/2022 fell on a date that I was to attend an Electoral Dispute Resolution briefing out of the station on short notice. On the latter date, the Deputy Registrar Hon. Lester Simiyu fixed the matter for 3/10/2022.

10. Both parties appeared on 3/10/2022 with the Respondents having filed Grounds of opposition dated 24/9/2022 through the firm of Okoyo Omondi and Company Advocates.

11. The grounds of opposition are:1. The application is misconceived and bad in law as the orders sought therein have not only been overtaken by events but also contravenes the position of Section 21 of the County Assembly Service Act.2. The applicant has not made out a prima facie case with a high probability of success against the Respondents and the same does not in any form, manner and substance meet the legal prerequisite for the grant of the equitable remedy of an injunction as cast in leading case of Giella ‘Annella’ Vs Cassman Brown and Co. Ltd & Another, and that the application is made in bad faith, and is supported by false and unsubstantiated facts.

12. The parties argued the application orally, reiterating the grounds in support and in opposition as reproduced herein above.

Determination 13. I have considered the application, grounds, supporting affidavit and annextures. I have also considered the grounds of opposition and the oral submissions on either side.

14. The main issue for determination is whether the application dated 19/9/2022 has any merit and secondly, whether this court has jurisdiction to entertain the petition which is clearly couched as a Constitutional Petition yet it attacks the failure by the Respondents to implement the Decree of the Employment and Labour Relations Court at Kisumu in ELRC Petition No. 16 of 2019.

15. From my directions given on 19/9/2022, this court believed that the applicant/Petitioner would be guided. Further, before hearing the application, the court inquired from the Applicant whether his petition was still alive and he said yes because the 3rd Respondent Clerk is in office illegally beyond the term limit. From the application in his Prayer No. 6, it is clear that the order for temporary injunction cannot issue because the meeting of 20/9/2022 has already been convened and held, with the Speaker of the County Assembly of Siaya being duly elected as scheduled. That prayer is overtaken by events.

16. However, the applicant also sought that the Respondents should be injuncted from holding any other meeting convened by the 3rd Respondent. Again without delving deep into the principles for granting of interlocutory injunction, from the annextures availed, it is clear that there is a judgment and decree issued by a court of competent jurisdiction, determining the dispute relating to the suspension of Mr. Isaac Felix Olwero from Office of Clerk of County Assembly of Siaya and quashing the decision to revoke the appointment of the said Clerk. The Employment and Labour Relations Court in Kisumu ELRC Petition No. 16/2019 also declared that the suspension of the said Clerk was not in compliance with the law.

17. The decree from that court, which is a court of equal status with the High Court is annexed. The applicant Petitioner complains that that Decree has not been enforced.

18. That being the case, I have no hesitation in holding that the appropriate avenue for ventilation of the non-compliance with the decree and orders made in ELRC Petition No. 16/2019 is the same court.

19. No party can be allowed to carry a decree from a court of equal status and seek to enforce that decree through a petition filed in the High Court.

20. The jurisdictions of these two superior courts are distinct and are granted by the Constitution and by Statute.

21. The High Court derives its jurisdiction from Article 165 of the Constitution while the Employment and Labour Relations Court derives its jurisdiction from Article 162(2) (a) of the Constitution. The enabling Statutes for each court are also spelt out including the High Court Organization & Administration Act in the case of this court and Employment & Labour Relations Court Act in the case of the latter Court.

22. Furthermore, Article 165 (5) (b) of the Constitution expressly bars this court from hearing and determining disputes reserved for the courts contemplated in Article 162 (2) (a) and (b) of the Constitution and for the Supreme Court.

23. Jurisdiction is everything without which a court of law acts in vain. No party can grant jurisdiction to a court, not even by consent of the parties. Neither can a court of law arrogate itself of jurisdiction which it is devoid of. Jurisdiction of this Court is granted and limited by the Constitution and various statutes that also grant jurisdiction to other courts or bodies or authorities to hear and determine specific types of disputes. These principles are well captured in various cases including the locus classicus case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR that:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”See Words and Phrases Legally defined – Volume 3: I – N Page 113It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined.”[emphasis added]

24. The question of jurisdiction can be raised by the adverse party or by the Court on its own motion because no Court of law should proceed and determine a matter which it has no jurisdiction to hear and determine. In addition, courts are deemed to know the law hence jurisdiction being a matter of law, the court can determine it on its own motion.

25. I reiterate, quite strongly that Jurisdiction is such an important matter in every proceeding initiated before any court or tribunal and in every judicial determination. It is the master key to unlocking every first hurdle in judicial or quasi-judicial proceedings. Without jurisdiction, a court of law or tribunal would be engaging on its own frolic if it attempts to determine the merits of any dispute before it. Jurisdiction is conferred by the Constitution or other written law. No court of law or tribunal can arrogate itself jurisdiction that it is devoid of. Neither can parties to a dispute consent to cloth the courts or tribunals with jurisdiction to entertain their dispute. It follows that jurisdiction is the heartbeat of all judicial and quasi-judicial proceedings. It is for that reason that the Supreme Court in Republic v Karisa Chengo [2017] eKLR underscored the significance of jurisdiction and restated what has been said time and again that:“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means.If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

26. The ELRC has jurisdiction in all Employment and Labour Relations matters including jurisdiction to make declaration which are being sought by the applicant in this application and by extension, the Petition herein. Section 12 (1) and (7) of the Employment and Labour Relations Act clothes the Court with sufficient jurisdiction to entertain matters of the nature of the Petition herein and grant any of the orders or prayers sought herein.

27. The High Court’s jurisdiction is not to interfere with jurisdictions of courts of equal status. Nothing prevented the applicant from approaching the ELRC to enforce the decree issued in Kisumu ELRC Petition No. 16/2019, and seeking to bar the Respondents from committing acts which are described as illegal and unconstitutional in view of the decree in Petition No. 16/2019. The Applicant has attempted to coach his arguments to remove himself from the ELRC Petition 16/2019. However, I find that the Petitioner in that Petition who is also the Decree holder is in the shadow of this Petition, using the Petitioner herein to enforce decree of another court by this court. That is not acceptable. The Petitioner herein was unable to persuade this court that it has any jurisdiction to entertain the Petition and grant the orders sought in the Notice Motion. This court is being asked to step into the jurisdiction of ELRC Court which it must resist at all costs.

28. For the above reasons, I find that the Notice of Motion dated 19/9/2022 is devoid of merit. And for want of jurisdiction to enforce judgments of ELRC, I hereby proceed and strike out the Petition dated 19/9/2022 which is grounded on Kisumu ELRC Petition No. 16/2019. To hold otherwise would be to cosmetically stretch the jurisdiction of this court contrary to the law. I order that each party shall bear their own costs of the Petition and the Notice of Motion dated 19/9/2022.

29. This file is hereby closed.

30. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA, THIS 4TH DAY OF OCTOBER, 2022. R.E. ABURILIJUDGE