[2022] KEHC 14241 (KLR)
The High Court lacks jurisdiction to hear and determine employment and labour relations disputes, including applications for judicial review orders arising from employer-employee relationships. Such jurisdiction is exclusively vested in the Employment and Labour Relations Court by virtue of Article 162(2)(a) and...
Source-derived case information.
- Citation
- [2022] KEHC 14241 (KLR)
- Parties
- Applicant: Republic; Respondent: Secretary Teachers Service Commission; Respondent: Attorney General; Applicant: Francis Namugerwa Odembo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E006 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection Regarding Jurisdiction
- Outcome
- Application struck out for want of jurisdiction.
- Judges
- RE Aburili
- Legal Topics
- Judicial Review, Jurisdiction of Courts, Employment Termination, Constitutional Limitations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Secretary Teachers Service Commission
Respondent
Attorney General
Respondent
Francis Namugerwa Odembo
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection Regarding Jurisdiction
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain judicial review proceedings relating to employment disputes between an employee and employer.
- 2 Whether the matter ought to have been initiated before the Employment and Labour Relations Court.
Ratio Decidendi
The High Court lacks jurisdiction to hear and determine employment and labour relations disputes, including applications for judicial review orders arising from employer-employee relationships. Such jurisdiction is exclusively vested in the Employment and Labour Relations Court by virtue of Article 162(2)(a) and Article 165(5)(b) of the Constitution, as well as section 12 of the Employment and Labour Relations Court Act. Since the dispute in question concerns the dismissal of an employee by the Teachers Service Commission, it falls squarely within the jurisdiction of the ELRC. The application for leave to apply for judicial review is therefore a non-starter and must be struck out for want...
Court Disposition
Application struck out for want of jurisdiction.
Orders
- The application for leave to apply for judicial review is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
Republic v Secretary Teachers Service Commission & another; Odembo (Exparte) (Miscellaneous Civil Application E006 of 2022) [2022] KEHC 14241 (KLR) (19 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14241 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Civil Application E006 of 2022
RE Aburili, J
October 19, 2022
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR AN ORDER OF CERTIORARI
Between
Republic
Applicant
and
Secretary Teachers Service Commission
1st Respondent
Attorney General
2nd Respondent
and
Francis Namugerwa Odembo
Exparte
Ruling
1. The notice of motion dated April 13, 2021 seeks leave of this court to institute judicial review proceedings challenging the procedure adopted by Teachers Service Commission (TSC) the 1st Respondent herein in dismissing the ex parte applicant who was its employee, from the teaching service.
2. The 1st respondent filed a preliminary objection dated May 3, 2022 objecting to the jurisdiction of this court to hear and determine the matter and Mr. Osala counsel for theex parte applicant, upon perusal of the various sections/articles of the Employment and Labour Relations Court Act and the Constitution concedes that this matter ought to have been initiated before the ELRC.
3. Article 162(2) (a) of the Constitutioncontemplates the establishment of the Employment and Labour Relations Court which is a court of equal status with the High Court to hear and determine disputes relating to Employment and Labour Relations. The disputes include but not limited to those set out in theELRCActand more particularly section 12 of the Act. In addition, the Employment and Labour Relations Court Act at section 12(7) has power to make orders including Judicial Review Orders as the ones sought herein.
4. Under article 165(5) (b) of the Constitution, the High Court is prohibited from entertaining disputes which are expressly reserved for the courts contemplated in article 162(2) of the Constitution and the Supreme Court.
5. Jurisdiction is everything without which a court of law acts in vain and therefore once a court finds that it has no jurisdiction to entertain a matter before it, it must down its tools and do no more.
6. Jurisdiction cannot be vested by the parties, not even by fiat of the court. Jurisdiction is given by statutes and the Constitution. In the instance case, the Constitutionat articles 162(2) and 165(5) (b) limits the jurisdiction of this Court and bars it from hearing and determining disputes which are reserved for the courts of equal status. This dispute being between employee and employer, strictly speaking, falls within the jurisdiction of the Employment and Labour Relations Court. It is not a shared or eclectic.
7. For that reason above, I find that this court is devoid of jurisdiction to hear and determine the intended substantive notice of motion and therefore the application for leave to apply is a non starter.
8. It is hereby struck out with no orders as to costs and this file is accordingly closed.
9. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 19TH DAY OF OCTOBER 2022R. E. ABURILIJUDGE