[2020] KEELRC 272 (KLR)
The court declined to make a further ruling on the application for transfer of the suit to the High Court, noting that the Principal Judge had already addressed the issue on 17.12.2019 by declining to find urgency or grounds for transfer and directing that the application be heard together with the petition. Since...
Source-derived case information.
- Citation
- [2020] KEELRC 272 (KLR)
- Parties
- Applicant: Dr. Pius Wanjala; Respondent: Ethics and Anti-Corruption Commission; Respondent: Ms. Sicily Kariuki, Cabinet Secretary Ministry of Health; Respondent: The Law Society of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition 209 of 2019
- Procedural Posture
- Petition / Ruling on Application for Transfer of Suit
- Outcome
- Application for transfer not determined; matter referred to Principal Judge for clarification or further orders.
- Judges
- AN Makau
- Legal Topics
- Jurisdiction of Court, Transfer of Suit, Employment Relationships, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Pius Wanjala
Applicant
Ethics and Anti-Corruption Commission
Respondent
Ms. Sicily Kariuki, Cabinet Secretary Ministry of Health
Respondent
The Law Society of Kenya
Respondent
Procedural Posture
Petition / Ruling on Application for Transfer of Suit
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear the petition or if it should be transferred to the Anti-Corruption and Economic Crimes Division of the High Court.
- 2 Whether the subject matter of the petition relates to employment or anti-corruption and economic crimes.
- 3 Whether the previous directions by the Principal Judge preclude further ruling on the application for transfer.
Ratio Decidendi
The court declined to make a further ruling on the application for transfer of the suit to the High Court, noting that the Principal Judge had already addressed the issue on 17.12.2019 by declining to find urgency or grounds for transfer and directing that the application be heard together with the petition. Since this direction was not challenged by appeal or review, the court held that it would be improper to render a further ruling, as it could result in conflicting decisions. The matter was therefore referred back to the Principal Judge for clarification, variation, or review of her earlier orders, and for further directions to bring the matter to its logical conclusion.
Court Disposition
Application for transfer not determined; matter referred to Principal Judge for clarification or further orders.
Orders
- The file is referred to the Principal Judge to clarify, vary or review her orders of 17.12.2019 and deal with the matter to its logical conclusion.
- The matter will be mentioned before the Principal Judge on 18.11.2020 for further orders or directions.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION 209 OF 2019
IN THE MATTER OF VIOLATION OF ARTICLES 3, 10, 20, 21, 22, 23, 27, 28,
41, 47,73, 79, 232, 234, 236 AND 258 OF THE CONSTITUTION OF KENYA
IN THE MATTER OF THE EMPLOYMENT ACT, ETHICS AND ANTI-CORRUPTION
COMMISSION ACT AND LEADERSHIP AND INTEGRITY ACT
IN THE MATTER OF THE INVESTIGATION OF THE LIVE
PROCEEDINGSOF THE COURTAND OTHERS
BY ETHICSAND ANTI-CORRUPTION COMMISSION
BETWEEN
DR. PIUS WANJALA................................................................................PETITIONER
VERSUS
ETHICS AND ANTI-CORRUPTION COMMISSION.......................RESPONDENT
AND
MS. SICILY KARIUKI,
CABINET SECRETARY MINISTRY OF HEALTH......1ST INTERESTED PARTY
THE LAW SOCIETY OF KENYA...................................2ND INTERESTED PARTY
RULING
1. The Application herein is the Respondent’s Notice of Motion dated 16. 12. 2019 seeking the following orders: -
a. That the application be certified urgent and heard ex-parte at the first instance.
b. That the petition herein be transferred to the Anti-Corruption and Economic Crimes Division of the High Court for hearing and determination.
c. That costs of the application be in the cause.
2. The Application is premised on the grounds set out on the body of the motion and the supporting Affidavit sworn by Mr. Culet Simiyu Lunyolo on 16. 12. 2019. In brief, the applicant’s case is that the petition before the court does not relate to employment as envisaged by Article 162(2) of the Constitution and Section 12 of the Employment and labour Relations Court Act. On the contrary, the applicant contended that the petition is the proper subject matter of the Anti-Corruption and Economic Crimes Division of the High Court. She therefore urged the court to allow the application.
3. The Petitioner and the 2nd Interested Party opposed the application and maintained that the issues cited for investigation by the applicant fall within employment relations between the petitioner and the 1st Interested Party and as such this court is the proper court to hear and determine this suit as envisaged under the Constitution. However, the 1st respondent has supported the application for transfer of the suit to the High Court.
4. The application was canvassed by written submissions.
Issues for determination and analysis
5. I have carefully considered the application and also perused the Court record to see what other Judges stated when the matter was placed before them. Of relevance to this ruling is the orders made by the Principal Judge on 17. 12. 2019 when the application was placed before her as the Duty Judge under Certificate of Urgency. The Judge made the following pronouncement: -
“I do not discern any urgency in the application.I further do not see how an application filed in a Civil Court can be transferred to a Criminal Court as the same is not demonstrated in the pleadings filed.
In view of the fact that the petition herein is fixed for hearing on 20th January 2020, this application will be heard together with the petition on the said date. The applicant is directed to serve the petitioner forthwith.”[Emphasis added]
6. The above ruling and directions by the Principal Judge was not challenged by way of appeal or review and in my opinion I should eschew from rendering any further ruling on the application which seemed to have been declined in principle. By the judge directing that the petition to proceed together with the application on 20. 1.2020 in my view points to a summary rejection of the request for transfer of the suit to the High Court.
7. Flowing from the foregoing view, unless the said orders and directions by the Principal Judge are clarified, reviewed, varied and/or set aside, prudence dictates that making further ruling on the application for transfer of the suit to the High Court poses the risk of having conflicting and embarrassing opinions. Consequently, I refer the file to the Principal Judge to clarify, vary or review her orders of 17. 12. 2019, and deal with the matter to its logical conclusion. Accordingly, the matter will be mentioned before the Principal Judge on 18. 11. 2020 for further orders or directions.
Dated and delivered at Nairobi this 5th Day of November, 2020.
ONESMUS N MAKAU
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th April 2020, this judgment has been delivered to the parties online with their consent, the parties having waived compliance with Rule28(3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.
ONESMUS N. MAKAU
JUDGE