[2023] KEHC 23660 (KLR)

Republic v Permanent Secretary Provincial Administration & Internal Security Office of the President & another; Maengo (Exparte) (Miscellaneous Application 455 of 2007) [2023] KEHC 23660 (KLR) (Judicial Review) (6 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23660 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application 455 of 2007

JM Chigiti, J

October 6, 2023

Between

Republic

Applicant

and

Permanent Secretary Provincial Administration & Internal Security Office of the President

1st Respondent

Attorney General

2nd Respondent

and

Moses Otieno Maengo

Exparte

Judgment

1. Before this Honourable Court is a Notice of Preliminary Objection dated 31st March, 2023, opposing the Ex-parte Applicant’s substantive notice of motion dated 8th November, 2021 wherein The applicant seeks the following Orders:1. That this Honourable Court be pleased to issue an order of mandamus against the Respondent to compel him to Reinstate the Applicant to his old position as a chief grade II of Suna Raha location or re-deployment.2. That this Honourable Court be pleased to issue an order of mandamus against the Respondent to compel him pay the Exparte Applicant Dues and Arrears/ special damages amounting to Kshs. 2,083,079 together with interest.3. That this Honourable Court be pleased to issue an order of mandamus against the Respondent to compel him pay the exparte Applicant general damages amounting to Kshs.3million.4. That the costs of this Application be provided for.

2. The Application is supported by the Verifying Affidavit of Moses Otieno Maengo and the statement of facts.

The Respondent’s case 3. The Ex-parte Applicant filed a substantive motion dated the 08th November, 2021 seeking orders of Mandamus without seeking leave to institute Judicial Review proceedings.

4. The Respondent’s Counsel made an oral application to this Honourable court to dismiss the said application because the Applicant had not sought leave before instituting Judicial Review proceedings in line with Order 53 of the Civil Procedure Rules, 2010.

5. The Court exercised its discretion granted leave to the Ex parte Applicant to file the initial Chamber summons application seeking leave to institute Judicial Review proceedings.

6. The Ex-parte Applicant expeditiously filed the Chamber Summons dated 10th May 2022 but failed to file a fresh substantive Notice of Motion application.

7. On 14th December, 2022, the Applicant’s Counsel was absent when his matter was called out. The Respondent’s Counsel (who was present) informed the Court that the Ex-parte had not filed the substantive motion as was required and the Court subsequently dismissed the said chamber summons.

8. However, after the call over, the Counsel appeared before the Honourable Judge and stated that he filed the substantive motion dated the 8th November, 2021 and that he would be relying on the same as his substantive motion. The Court then reinstated the application.

9. In arguing the Notice of Preliminary objection, the Respondent proposed the following issue arising for determination:i.Whether this Honourable court has jurisdiction to hear and determine this suit.ii.Whether the Court should grant the Orders sought.

I. Whether this Honourable court has jurisdiction to hear and determine this suit. 10. The Respondents in their Preliminary objection dated 31st March, 2023 cite that this Honourable court lacks jurisdiction to hear and determine the present application since it is a dispute relating to Employment by virtue of the provisions of Article 165(5) of the Constitution which provides that;“The High Court shall not have jurisdiction in respect of matters (b) falling within the jurisdiction of the courts contemplated in Article 162(2) of the Constitution.Article 162 (2)(a) and 162 (3) provides that;“(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to(a)Employment and Labour relations;”“(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2). “

11. The Employment and Labour Relations Court contemplated by Article 162 (2) was established by the enactment of the Industrial Court Act (Act No. 20 of 2011). Pursuant to the Provisions of Article 162 (3), Parliament enacted the Employment and Labour Relations Court Act. Section 12(1) (a) of the Employment and Labour Relations Court Act provides that;“The Employment and Labour Relations Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the court relating to employment and labour relations including –(a)Disputes relating to or arising out of employment between an employer and an employee;”

12. In addition, the Respondents cite that Section 12 (3) of the Employment and Labour Relations Court Act provides that the Court can issue prerogative orders, which provision when read together with the provisions of Article 162(2) of the Constitution ousts the jurisdiction of this Court to hear and determine this case. The said Section provides that:“(3)In exercise of its jurisdiction under this Act, the Court shall have power to make any of the following orders: -i.interim preservation orders including injunctions in cases of urgency;ii.a prohibitory order;iii.an order for specific performance;iv.a declaratory order;v.an award of compensation in any circumstances contemplated under this Act or any written law;vi.an award of damages in any circumstances contemplated under this Act or any written law;vii.an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; orviii.any other appropriate relief as the Court may deem fit to grant.”

13. Judicial Review proceedings are special proceedings and as such this court does not have the jurisdiction to make a determination of this matter. The ex -parte applicant ought to have filed a petition under the Employment and Labour Relations Court and not as judicial review so as to properly canvass his case.

14. The Respondent relies on the case of United States International University versus Eric Outa [2012] eKLR. The main issue for determination in the suit was whether the High Court should continue to determine matters relating to labour and employment in light of the establishment of the Industrial Court. The Honourable Court held that the Employment and Labour Relations Court is a Court of the same, status as the High Court and that disputes touching on employment and labour relation involving alleged breach of rights and fundamental freedoms must be referred to the Employment and Labour Relations Court and not the High Court.“44. In the final analysis, I would adopt the position of the Constitutional Court of South Africa in Gcaba v Minister of Safety and Security (Supra). The Industrial Court is a specialist court to deal with employment and labour relations matters. By virtue of Article 162(3), section 12 of the Industrial Court Act, 2011 has set out matters within the exclusive domain of that court. Since the court is of the status of the High Court, it must have the jurisdiction to enforce labour rights in Article 41 and the jurisdiction to interpret the constitution and fundamental rights and freedoms is incidental to the exercise of jurisdiction over matters within its exclusive domain. In any matter falling within the provisions of section 12 of the Industrial Court Act, then the Industrial Court has jurisdiction to enforce not only Article 41 rights but also all fundamental rights ancillary and incidental to the employment and labour relations including interpretation of the Constitution within a matter before it.”

15. In light of what I have stated, I find and hold that the Industrial Court as constituted under the Industrial Court Act, 2011 as court with the status of the High Court is competent to interpret the Constitution and enforce matters relating to breach of fundamental rights and freedoms in matters arising from disputes falling within the provisions of section 12 of the Industrial Court Act, 2011.

16. A corresponding court to the High Court, that is the Industrial Court, has now been established to deal with employment and labour matters. It follows that all employment and labour relations matters pending in the High Court shall now be heard by the Industrial Court which is now a court of the status of the High Court. The High Court therefore lacks jurisdiction to deal with matters of employment and labour matters whether filed in the High Court before or after the establishment of the Industrial Court.”

17. The Respondent also relies on the decision in the United States University case was eventually followed by the Court of Appeal with approval in the case of Prof. Daniel N. Mugendi versus Kenyatta University [2013] eKLR.II. On the issue whether the Applicant should be granted the Orders as prayed

18. Judicial Review proceedings are special proceedings and as such this court does not have the jurisdiction to make a determination of this matter. The Ex -parte Applicant ought to have filed a suit under the specialized court.

19. Secondly, there is no order and/or Judgment in reference to Kisii High Court Civil Suit No. 63 of 2005 attached to the Notice of Motion dated 8th November, 2021, which the Respondents have declined, neglected or refused to comply with. The Addition of the said pleadings without informing the Court of the final determination adds no value to the instant application. It would seem like that the Applicant might have been denied the Orders he was seeking and that is why he is seeking audience of the judicial review Court.

20. According to the Respondent, the purpose of an order of Mandamus is to compel the performance of a public duty or any act contrary to or evasive of the law. It therefore lies against a Public Officer when some specific act or thing, which the law requires to be done, has been omitted. The conditions for its grant are that it must be shown that the Public Officer has failed to perform his duty; the Court will not grant Mandamus where there is an alternative remedy available to the applicant; and that it may be refused if the enforcement of the order will pose implementation challenges that require the Court’s supervision.

21. The Court of Appeal in the case of Republic Vs. Kenya National Examinations Council Ex Parte Gathenji & Others, (1997) EKLR explained the applicable principles for an order of mandamus to issue as follows:“The next issue we must deal with is this: What is the scope and efficacy of an Order Of Mandamus? Once again we turn to Halsbury’s Law Of England, 4th Edition Volume 1 at page 111 From paragraph 89. That learned treatise says:-“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”At paragraph 90 headed “the mandate” it is stated:“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed....”

22. The Respondent argues that from the above cited case, it is clear that an Order of Mandamus cannot issue in this case as the Applicant has not proved what duty or act that the Respondent has failed to perform and has also failed to prove any Order of Law requiring the Respondent to act.

23. It cannot therefore be said that the 1st Respondent has failed to perform his duties thus requiring intervention of the court. We humbly submit that the Court does not grant this prayer of Mandamus as it is not applicable in the instant suit. Moreover, issues of payment of General and Special damages are not within the mandate of a judicial review Court. In other words, this Court does not have the jurisdiction to order compensation in terms of special and general damages.

24. The test for mandamus is set out in Apotex Inc. Vs. Canada (Attorney General), 1993 CAN LII 3004 (F.C.A.), [1994] 1 F.C. 742 (C.A.), AFF'D 1994 Canlii 47 (S.C.C.), [1994] 3 S.C.R. 1100] and was also discussed in Dragan Vs. Canada (Minister of Citizenship and Immigration) 2003 FCT 211 (Canlii), [2003] 4 F.C. 189 (T.D.), AFF’D 2003 FCA 233 (Canlii), 2003 FCA 233). The eight factors that must be present for the writ to issue are: -i.There must be a public legal duty to act;ii.The duty must be owed to the Applicants;iii.There must be a clear right to the performance of that duty, meaning that:a.The Applicants have satisfied all conditions precedent; andb.There must have been:I.A prior demand for performance;II.A reasonable time to comply with the demand, unless there was outright refusal; andIII.An express refusal, or an implied refusal through unreasonable delay;iv.No other adequate remedy is available to the Applicants;v.The Order sought must be of some practical value or effect;vi.There is no equitable bar to the relief sought;vii.On a balance of convenience, mandamus should lie.

25. The Applicant’s application fails the above test and for that reason we pray that all the prayers for an Order of Mandamus be dismissed.

26. Lastly, the Respondents contend that the Ex parte Applicant’s application dated 8th November, 2021 is misplaced as this Honourable Court lacks jurisdiction to litigate the issues raised therein. It is our humble prayer that this Honourable Court upholds the Respondents Notice of Preliminary Objection and strike out the Applicant’s Notice of Motion with Costs.

Applicants case: 27. He received a letter of dismissal to the terminating his employment for no apparent reason and the 1st Respondent has never furnished him with grounds for his dismissal or warning or notice.

28. His claim against the 1st Respondent is to be reinstated to his position as the Chief Grade II of Suna Raha location or be redeployed.

29. Further and in the alternative to the aforementioned averments, the plaintiff states on the 25th day of January 2001 he was unlawfully dismissed from his employment by the 1st Respondent or his employee or servants and/or agents.

30. The Exparte Applicant claims against the 1st Respondent general damages, terminal dues and lost earnings as herein under: -Particulars of terminal dues:i.3 months' salary in lieu of notice - Kshs.24,741 /ii.Accrued leave allowance 1996-2004 - Kshs.61,088/iii.Leave travelling allowance - Kshs. 8,000/ -iv.Severance pay - Kshs.46,200/=Total Kshs.140,029/=Particulars of lost earnings:a.2001 - Kshs.98,944/ =b.2002 - Kshs.98,944/ -c.2003 - Kshs.98,944/ =d.7 months 2004- Kshs.57,729/ =e.2005 onwards -Kshs.1,448,460/ =Kshs.1,943,050/ =

31. His case is based on the following supporting documents including:i.letter of appointment dated 14th March,1996ii.letter dated 23/09/1999iii.court proceedings in Migori Senior Principal Magistrate's Court criminal case number 4 of 1999)iv.letter of dismissal dated 25th Janaury,2001v.letter dated 18th April,2001 from District Commissioner J.K. Ketervi.Appeal dated 25th June,2001vii.Letter dated 11th February 2004 from Office of the Presidentviii.Cross Appeal dated 27th April,2004ix.Letter dated 9th November,2004x.Statutory Notice to institute suit against the Attorney general dated 2nd August,2004xi.Reply to Attorney General dated 19th July 2004xii.Pleadings in Kisii High Court Civil Suit No.63 of 2005 later transferred to Nairobi and allocated a new number being Nairobi High Court JR Misc. Application No.455 of 2007. xiii.Order in respect to reconstruction of Nairobi High Court JR Misc.455 of 2007

32. He believes strongly that his right to fair labour practice including other rights provided for in the Constitution have been seriously breached.

33. The Ex-parte Applicants case is that this matter was filed in the year 2005, way before the enactment of the employment & Labor Relations Court Act. It was then transferred from Kisii High Court to Nairobi High Court and was allocated the current case number, being JR Misc. Civil Application No.455 of 2007.

34. The Pleadings in Kisii High Court Civil Suit No.63 of 2005 were later transferred to Nairobi and allocated a new number being Nairobi High Court JR Misc. Application No.455 of 2007.

35. The court file was then lost along the way, forcing the Ex-parte Applicant to file an Application for reconstruction of the file vide High Court Misc. Application No.315 of 2019. The said Application was allowed vide order issued by the Deputy Registrar Hon. C. Kithinji on 6th February, 2020. We attach to theses submissions, a copy of the order dated 6th February, 2020.

36. The Ex-parte Applicant argues that he has spent a great amount of time in court pursuing justice since the year 2005 and it would be greatly prejudicial to the ex-parte Applicant to strike out the matter at this time without giving him a hearing. The matter was changed from a High Court Civil matter to Judicial Review by the court on its own motion as is evidenced by the letter dated 3rd May, 2007 from the Deputy Registrar High Court of Kenya, Nairobi, addressed to the Registrar Kisii High Court.

37. On the issue of the order regarding leave to institute Judicial Review proceedings, he states that the Application for leave was allowed by consent when counsel A. Nyakora for the Attorney General stated that she would not oppose the Application for judicial review.

38. According to him, what the AG is raising is just an issue of technicality of procedure which we urge the Honourable Court not to have undue regard to, but dispense with justice after considering the Application on merit

Analysis and Determination 39. Following are the issues for determination.a.Does this court have jurisdiction?b.Can the orders sought be granted?

1st issue: 40. The Respondent raised a notice of preliminary objection date 31st day of March, 2023.

41. The Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR,(36)Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.(37)It is, therefore a basic rule of procedure that jurisdiction must exist when the proceedings are initiated. Because the question of jurisdiction is so fundamental, a limitation on the authority of the court, it can be raised at any stage of the proceedings by any party or even by the court suo motu. As a matter of practice, this Court has a duty of jurisdictional inquiry to satisfy itself that it is properly seized of any matter before it.(38)It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft. See Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR. Nor can parties, by consent confer on a court power it does not have.

42. Article 165(5) of the Constitution which provides that;“The High Court shall not have jurisdiction in respect of matters (b) falling within the jurisdiction of the courts contemplated in Article 162(2) of the Constitution.

43. Article 162 (2)(a) and 162 (3) provides that;“(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to(a)Employment and Labour relations;”“(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2). “

44. The Employment and Labour Relations Court contemplated by Article 162 (2) was established by the enactment of the Industrial Court Act (Act No. 20 of 2011). Pursuant to the Provisions of Article 162 (3), Parliament enacted the Employment and Labour Relations Court Act. Section 12(1) (a) of the Employment and Labour Relations Court Act provides that;“The Employment and Labour Relations Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the court relating to employment and labour relations including –(a)Disputes relating to or arising out of employment between an employer and an employee;”

45. The Respondent raises a valid preliminary on a point of law on the grounds:1. That the Honourable Court lacks the jurisdiction to hear and determine the present application since it is a dispute relating to employment by virtue of the provisions of Article 165 (5) of the constitution which provides that ‘the High Court shall not have jurisdiction in respect of matters- (b) falling within the jurisdiction of the courts contemplated in Article 162(2)’.2. That Section 12 (1) (a) of the Employment and Labour Relations Court Act provides that;“the Employment and Labour relations Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including-(a)disputes relating to or arising out of employment between an employer and an employee;”3. That Section 12 (3) of the Employment and Labour Relations Court Act provides that the Court can issue prerogative orders, which provision if read together with the provisions of Article 162(2) of the Constitution ousts the jurisdiction of this Court to hear and determine this case. The said Section provides that: -“(3)In exercise of its jurisdiction under this Act, the Court shall have power to make any of the following orders: -i.interim preservation orders including injunctions in cases of urgency;ii.a prohibitory order;iii.an order for specific performance;iv.a declaratory order;v.an award of compensation in any circumstances contemplated under this Act or any written law;vi.an award of damages in any circumstances contemplated under this Act or any written law;vii.an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; orviii.any other appropriate relief as the Court may deem fit to grant.

46. Section 12 (3) of the Employment and Labour Relations Court Act provides that the Court can issue prerogative orders interalia the following reliefs:i.an award of compensation in any circumstances contemplated under this Act or any written law;ii.an award of damages in any circumstances contemplated under this Act or any written law;iii.an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the Court thinks fit to impose under circumstances contemplated under any written law; oriv.any other.

47. The cause of action, the pleadings, the case supporting documents and the reliefs sought clearly show that this is an employment related dispute. The Employment and Labour Relations Court Act has since created a court that can hear and determine this suit. In the spirit of upholding social transformation to justice the best that this court can do is to transfer the file to the for hearing and determination. The Applicant has been in the justice system since the year 2005. Striking out the suit will leave the Applicant with no recourse given the fact that he has been caught up by the Limitation of Action Act and he cannot file a fresh suit.

The 2nd issue: 48. Having returned a finding that this court lacks jurisdiction, this court cannot address its mind to the second issue which falls by the wayside.

Disposition: 49. The Notice of Preliminary objection dated 31st March, 2023 is upheld.Order:1. The suit is hereby transferred to the Employment and Labour Relations Court Act.2. No orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER 2023. ……………………………………JOHN CHIGITI (SC)JUDGE