[2019] KEHC 6470 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

(Coram: Odunga, J)

CONSTITUTIONAL PETITION NO. 18 OF 2018

IN THE MATTER OF: ARTICLES1, 2, 10, 19, 20, 21, 22, 23, 24, 27, 28, 35, 41, 47, 50,165, 171,

172, 230, 232, 253, 258 AND 259 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA

AND

IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS

AND

IN THE MATTER OF INTERPRETATION AND ENFORCEMENT OF THE

CONSTITUTION OF KENYA, 2010 RELATING TO THE SALARIES AND

REMUNERATION OF JUDGES OF THE HIGH COURT OF KENYA

AND

IN THE MATTER OF THE JUDICIAL SERVICE COMMISSION, A CONSTITUTIONALCOMMISSION

ESTABLISHED PURSUANT TO ARTICLE 171 & 253 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE SALARIES AND REMUNERATION COMMISSION,

A CONSTITUTIONAL COMMISSION ESTABLISHED PURSUANT

TOARTICLES 230 & 253 OF THE CONSTITUTION OF KENYA

BETWEEN

SOLLO NZUKI....................................................................................PETITIONER

=VERSUS=

SALARIES AND REMUNERATION COMMISSION...........1ST RESPONDENT

JUDICIAL SERVICE COMMISSION.....................................2ND RESPONDENT

THE HONOURABLE ATTORNEY GENERAL......................3RD RESPONDENT

RULING

1. This petition, according to the petitioner, has been triggered by the decision by the 1st and 2nd Respondents in disregard of their constitutional mandate to categorise judges of the High Court on the basis of whether they were appointed from “outside the judiciary” or “were serving in the judiciary” and that the said respondents have discriminated, differentiated and oppressed and continue to oppress some High Court judges and judges of courts of equal status classified as appointed from “outside the judiciary.”

2. It was the petitioners case that the said decision went contrary to the legitimate expectation of the said judges by being offered a starting salary much lower than their predecessors appointed before them.

3. It was the petitioner’s view that the disparity between the starting salaries of judges appointed from “outside the judiciary” or those who “were serving in the judiciary” is oppressive, unjust, unwarranted, ill-advised and discriminatory hence unconstitutional.

4. It was pleaded that as a result of the said discrimination and unfair treatment, the affected judges cannot access or enjoy some of their entitlements and or benefits such as full mortgage scheme because their low pay cannot sustain their full mortgage entitlement and that this amounts to indirectly or directly varying the benefits payable to a judge in total violation of Article 160(4) of the Constitution.

5. It was contended that to entrench and perpetuate the above inequality, unfair differentiation and or discrimination, the 1st respondent issued a circular dated 18th August, 2017 addressed to the 2nd Respondent purporting to set remuneration and benefits of state officers in the judiciary in which a judge appointed from outside the judiciary would join at the minimum remunerate n set while those whose remuneration were set earlier would retain such remuneration package. Apart from entrenching inequality, oppression and unfair differential treatment, it was pleaded that the said action has resulted in grave absurdity where some judges are earning more than judges who were appointed earlier than them.

6. Accordingly, the petition sought the following orders:

a) As a consequence of the blatant violation of the Constitution enumerated herein above, and the violation of the fundamental rights of the affected Judges, you Petitioner humbly prays for the following orders:

b) A declaration that paying Judges of the High Court of Kenya and Judges of Courts of equal status a starting salary that is lower than the starting Remuneration of other Judges of High Court of Kenya and Courts of equal status appointed to the same office on the same day is a violation of the affected Judges’ rights’ not to be discriminated against as guaranteed by Article 27 of the Constitution and a violation of their rights’ as guaranteed by Articles 41 (2) (a) and 47 of the Constitution.

c) A declaration that the appointment to the office of Judge of the High Court of Kenya and or a Judge of Courts of equal status is a substantive appointment and not a promotion from a position of Magistrate or any other office as such all persons appointed to office of Judge of the High Court of Kenya and Courts of equal status are entitled to similar starting Remuneration and benefits.

d) A declaration that the 1st Respondent’s failure to set and publish in the Kenya Gazette the Remuneration of a Judge of the High Court of Kenya and Courts of equal status is in violation of Article 238 of the Constitution, 2010 and also amounts to discrimination against all persons serving as Judges of the high Court of Kenya and Courts of equal status contrary to Article 27 of the Constitution, 2010.

e) A declaration that the purported categorization by the first and second Respondents of High Court Judges and Judges of Courts of equal status based on whether they were appointed from outside or within the judiciary is unconstitutional.

f) A declaration that the first Respondent’s communication on the Remuneration of Judges and Magistrates contained in its letter Ref No. SRC/TS/HRCOH/3/25 dated 10th June 2013 is discriminatory to the extent that it subject Judges appointed in 2014, 2015 and 2016 to a lesser starting salary that the starting salary of those appointed prior to the said period.

g) A declaration that the first Respondent’s proposal contained in their letter dated 18th August 2018 addressed to the Secretary, Judicial Service Commission, stating that the remuneration and benefits contained therein will be payable to Judges and Magistrate with effect 1st July 2017 is illegal on grounds of unfair discrimination to the extent that it does not benefit Judges appointed in 2014, 2015 and 2016.

h) A declaration that the first and second Respondents have jointly and severally acted in a manner that is inconsistent and or in total violation of the Constitution and in particular, it had breached Articles 2 (4), 10 (2), (b) (c), 19, 27, 28, 41, 47, 23 (5) (b) (c) * (d), 249 (a), 160 and 172 (1) (b) of the Constitution.

i) A declaration that the third Respondent has failed, refused and or neglected its constitutional mandate of advising the first and second Respondents.

j) An order compelling the first and second Respondents to pay all the affected Judges the starting salary equal to the starting salary paid to the Judges appointed with them on their respective dates of appointment and/or the starting salary paid to Judges appointed in or about 2011/2012 of thereabouts (whichever is higher), and that the said amount(s) plus benefits be backdated to their respective dates of appointment and paid promptly.

k) Any other relief that this court may deem just and expedient in the circumstances.

l) That the costs of this Petition be borne by the 1st and 2nd Respondent.

7. The subject of this ruling, however, is a Notice of Motion dated 19th March, 2019 by the 1st Respondent seeking that this petition be struck out. Apart from the application, there is also a preliminary objection taken by the 2nd respondent dated 30th January, 2019 similarly seeking that the petition be struck out on the following grounds:

1. The petitioner not being a Judge or being personally aggrieved, lacks the locus standi to bring this petition on behalf of the judges of the High Court and Courts of equal status.

2. The cause of action in this petition relates to the relationship between an employee and employer and therefore this Honourable Court lacks jurisdiction to hear and determine the matter in light of the provisions of Articles 162(2) and 165(5) of the Constitution of Kenya, 2010.

8. The application was supported by an affidavit sworn by Anne R. Gitau, the 1st Respondent’s Chief Executive Officer sworn 0n 19th March, 2019. The gist of the affidavit was that the issues raised in the petition having been addressed by the 1st Respondent, the petition is nolonger tenable as there is nothing for the court to determine. It was therefore contended that the gravamen of this petition having been addressed, no cause of action exists and the orders being sought would be made in vain. As the alleged violation or breach of constitutional provisions has been remedied, it was deposed that there is nolonger any breach of the Constitution.

9. The application was opposed by an affidavit sworn by the petitioner on 2nd April, 2019. According to the petitioner, the 1st Respondent instead of addressing the disparities complained of pursued a review of salaried for all judges as opposed to addressing the concerns raised by the affected judges. To the petition, the said review was a deliberate and informed by partisan interests in entrenching the disparities complained about.

10. In its submissions the 1st Respondent reiterated that the dispute between the parties herein having been resolved there is no basis for entertaining this petition.

11. On behalf of the 2nd Respondent, it was submitted in support of the preliminary objection that from the pleadings in the petition, the same relates to the terms and conditions of the respective judges and is therefore a dispute arising out of employment between judges as employees and the 2nd respondent as the employer.

12. It was further submitted that the petitioner, a Kenyan Citizen, not being a judge has no locus standi to bring the petition. It was contended that from the prayers sought in the petition, the petitioner is not interested in the public but only the benefit of individual judges who feel aggrieved by the alleged disparities. It was however the 2nd Respondent’s view that the aggrieved judges ought to have filed the petition either as individuals or through their registered association pursuant to section 12 of the Employment and Labour Relations Court Act, No. 20 of 2011.

13. It was further submitted that pursuant to Articles 162(2) and (3), 165(5) as read with section 12(1) of the Employment and Labour Relations Court Act, the dispute herein in so far as it relates to alleged disparities in salaries between judges of the High Court as well as those of Courts of equal status appointed within the judiciary on the one hand and those appointed outside the judiciary on the other hand is a dispute between an employer and an employee hence this court lacks jurisdiction to hear and determine the mater. In support of this position, the 2nd respondent relied on the decision of the Supreme Court in Republic vs. Karisa Chengo & 2 Others [2017] eKLR.

14. The preliminary objection was supported by the 3rd Respondent on similar grounds to those of the 2nd Respondent and relied on John Kipngéno Koech & 2 Others vs. Nakuru County Assembly & 5 Others [2013] eKLR, The Owners of Motor Vessel “Lillian S” vs. Caltex Oil Kenya Limited [1989] KLR 1653 and United States International University (USIU) vs. Attorney General [2012] eKLR and Daniel N. Mugendi vs. Kenyatta University & Others Civil Appeal No. 6 of 2012.

15. It was further submitted that the contract of employment between the judges and their employer is a private matter hence third parties are barred from venturing therein. Accordingly, the petitioner is non-suited to bring the claim and his case is therefore a non-starter. In this respect the 3rd respondent relied on Okiya Omtatah Okoiti vs. Attorney General & Another [2013] eKLR. and submitted that in as much as the Constitution gives room for people to act on behalf of others, it has to be a serious public interest case and not on private matters where the affected persons can actually act for themselves.

16. It was further submitted on behalf of the 3rd Respondent that the application dated 19th March, 2019 should similarly be allowed as the issues pending before the Court have been addressed.

17. Both the application and the preliminary objection were however opposed by the petitioner. According to the petitioner, the matter at hand is a constitutional petition seeking to protect the constitutional values and principles expressed under The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. It was therefore submitted that the question of striking out must bear in mind the scope and objectives of the said Rules as expressed in Rule 3(1) which include the overriding objective to facilitate access to justice and the need to interpret the rules in accordance with Article 259(1) of the According to the petitioner what the Respondents seek to achieve by the application is contrary to the aforesaid constitutional provisions and principles of law.

18. It was further submitted that the subject petition is a public interest litigation hence a litigant including the petitioner may not withdraw the same. It was submitted that striking out a petition filed under Article 258 of the Constitution is not only rare but should happen at the rarest of circumstances and only where the proceedings are an abuse of the court process, which is not the case here. Since the petition cites the violation of the Constitution, it was submitted that this court has an obligation to uphold the values and principles of the Constitution and afford the petitioner an opportunity to prove the mischief and unconstitutionality of the actions and omissions of the respondents and how they adversely impact on the due administration of justice. In support of his position the petitioner relied on Randu Nzai Ruwa & 2 Others vs. Secretary, the Independent Electoral and Boundaries Commission & 9 Others [2016] eKLR and Mumo Matemu vs. Trusted Society of Human Rights Allliance & 5 Others [2013] eKLR.

19. As regards the issue of jurisdiction, the court was urged to be guided by Article 165(3)(b) of the Constitution of Kenya, 2010 which provides for the jurisdiction of the High Court where it is alleged that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.

20. The Court was therefore urged to dismiss both the application and the preliminary objection with costs.

Determination

21. I have considered the issues raised herein.

22. The issues for determination before me in this ruling are three: First is whether the issues in dispute herein have been resolved; secondly, is the locus standi of the petitioner; and thirdly, whether this court has jurisdiction to hear and determine the issues raised in this petition.

23. As regards the issue whether the matters the subject of the petition have been resolved, whereas the 1st Respondent’s case is that the same have been resolved, the petitioner is of a different view. According to the petitioner, the only action that has been taken by the 1st and 2nd respondents is a review of the salaries of all the judges rather than harmonisation of the salaries between the judges who join the judiciary from outside and those who join from within the judiciary. I have perused the letter dated 13th December, 2018 from the 1st Respondent to the 2nd Respondent. A cursory glance of the same clearly shows that a Chief Magistrate who has reached the peak of his or her career in the same position would earn more than a newly recruited judge. Therefore, if such a Chief Magistrate were to be appointed a judge, there would still be salary disparities despite the appointments being at the same time or even where such a Chief Magistrate were to be appointed a judge after the appointment of the other judges who were not holding the position of a Chief Magistrate. This is exactly my understanding of the petitioner’s grievances. Accordingly, the letter dated 13th December, 2018 cannot be said to have resolved the issues the subject of this petition.

24. The principles guiding the striking out of pleadings and cases is now well settled. These principles, as set out in D T Dobie & Company (K) Ltd vs. Muchina [1982] KLR 1, are that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it. The rationale for this is due to a realisation that the exercise of the powers for summary procedure are draconian, coercive and drastic. And because a party may thereby be deprived of his right to a plenary trial, the court exercises those powers with the greatest care and circumspection and only in the clearest of cases as regards the facts and the law. The summary procedure should therefore only be adopted when it can be clearly seen that a claim or case is clear and beyond doubt unarguable and the judicial system would never permit a party to be driven from the judgement seat without any court having considered his right to be heard, except in cases where the cause of action was obviously and almost incontestably bad.

25. The importance of the above position cannot be overemphasised in matters where what is in issue is an allegation either that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or that the Constitution has been contravened, or is threatened with contravention. It must always be remembered that a High Court is by virtue of the provisions of Article 165 of the Constitution a Constitutional Court and where it is apparent to the Court that the Bill of Rights has been or is threatened with contravention, to avoid to enforce the Bill of Rights on the grounds which are not clear and which are contested would amount to this Court shirking from its constitutional duty of granting relief to deserving persons and to sacrifice the constitutional principles and the dictates of the rule of law at the altar of procedural issues. I therefore, associate myself with the decision in Nation Media Group Limited vs. Attorney General [2007] 1 EA 261 to the effect that.

“A Constitutional Court should be liberal in the manner it goes round dispensing justice. It should look at the substance rather than technicality. It should not be seen to slavishly follow technicalities as to impede the cause of justice...As long as a party is aware of the case he is to meet and no prejudice is to be caused to him by failure to cite the appropriate section of the law underpinning the application, the application ought to proceed to substantive hearing…”

26. Consequently, I decline to terminate these proceedings on the ground that the subject matter of this petition has been resolved.

27. The next issue is the locus standi of the petitioner in these proceedings. As stated above the petitioner’s case is that the actions of the respondents adversely impact on the due administration of justice since they discriminate against some judges contrary to the various provisions of the Constitution. In Ms. Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010 it was appreciated that:

“Over time, the English Courts started to deviate and depart from their contextual application of the law and adopted a more liberal and purposeful approach. They held that it would be a grave lacuna in the system of public law if a pressure group or even a single spirited taxpayer, were prevented by outdated technical rules of locus standifrom bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The strict rule of locus standiapplicable to private litigation is relaxed and a broad rule is evolved which gives locus standito any member of public acting bona fideand having sufficient interest in instituting an action for redressal of public wrong or public injury by a person who is not a mere busybody or a meddlesome interloper; since the dominant object of Public Interest Litigation is to ensure observation of the provision of the constitution or the law which can be best achieved to advance the cause of the Community or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration, but acting, bona fideand having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like action popularisof Roman Law whereby any citizen could bring such an action in respect of public delict. Standing will be granted on the basis of public interest litigation where the petition is bona fideand evidently for the public good and where the Court can provide an effective remedy…In Kenya the Court has emphatically stated that what gives locus standiis a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population. The court equally has recognised that organisations have rights similar to that of individual private member of the public. A new dawn was the ushered in and the dominion of Private Law and its restrictive approach was dealt a final blow. A new window of opportunity emerged in the area of Public Law and shackles of inhibition in the name of locus standiwere broken and the law was liberalised and a purposeful approach took the driving seat in the area of Public Law. In human rights cases, public interest litigation, including lawsuits challenging the constitutionality of an Act of Parliament, the procedural trappings and restrictions, the preconditions of being an aggrieved person and other similar technical objections, cannot bar the jurisdiction of the court, or let justice bleed at the altar of technicality. The court has vast powers under section 60 of the Constitution of Kenya, to do justice without technical restrictions and restraints; and procedures and reliefs have to be moulded according to the facts and circumstances of each case and each situation. It is the fitness of things and in the interest of justice and the public good that litigation on constitutionality, entrenched fundamental rights, and broad public interest protection, has to be viewed. Narrow pure legalism for the sake of legalism will not do. We cannot uphold technicality only to allow a clandestine activity through the net of judicial vigilance in the garb of legality. Our legal system is intended to give effective remedies and reliefs whenever the Constitution of Kenya is threatened with violation. If an authority which is expected to move to protect the Constitution drags its feet, any person acting in good faith may approach the court to seek judicial intervention to ensure that the sanctity of the Constitution of Kenya is protected and not violated. As part of reasonable, fair and just procedure to uphold the Constitutional guarantees, the right to access to justice entails a liberal approach to the question of locus standi.Accordingly in constitutional questions, human right cases, public interest litigation and class actions, the ordinary rules of Anglo-Saxon jurisprudence, that an action can be brought only by a person to whom legal injury is caused, must be departed from. In these types of cases, any person or social action groups, acting in good faith, can approach the court seeking judicial redress for a legal injury caused or threatened to be caused or to a defined class of persons represented, or for a contravention of the Constitution, or injury to the nation. In such cases the court will not assist such a public-spirited individual or social action group espousing their cause, to show his or their standing to sue in the original Anglo-Saxon conception…”

28. The Court continued:

“In the interest of the realisation of effective and meaningful human rights, the common law position in regard to locus standihas to change in public interest litigation. Many people whose fundamental rights are violated may not actually be in a position to approach the Court for relief, for instance, because they are unsophisticated and indigent, which in effect means that they are incapable of enforcing their fundamental rights, which remain merely on paper. Bearing this in mind, where large numbers of persons are affected in this way, there is merit in one person or organisation being able to approach the court on behalf of all those persons whose rights are allegedly infringed. This means that human rights become accessible to the metaphorical man or woman in the street. Accessibility to justice is fundamental to rendering the Constitution legitimate. In this sense, a broad approach to locus standiis required to fulfil the Constitutional court’s mandate to uphold the Constitution as this would ensure that Constitutional rights enjoy the full measure of protection to which they are entitled.”

29. Similarly, in Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others Civil Appeal No. 290 of 2012 the Court of Appeal stated at page 16 as follows:

“Moreover, we take note that our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the argument of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st respondent had the locus standi to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution.”

30. Article 258 of the Constitution provides as follows:

(1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.

(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act in their own name;

(b) a person acting as a member of, or in the interest of, a group or class of persons;

(c) a person acting in the public interest; or

(d) an association acting in the interest of one or more of its members.

31. Long before the promulgation of the current Constitution, it was held in Shah Vershi Devji & Co. Ltd vs. The Transport Licencing Board Nairobi HCMC No. 89 of 1969 [1970 EA 631; [1971] EA 289 that:

“Section 70 of the Constitution of Kenya itself creates no rights but merely gives a list of the rights and freedoms which are protected by other sections of Chapter V of the Constitution. It may be helpful in interpreting any ambiguous expressions in later sections of Chapter V. The word “person” is defined in section 123 as including “any body of persons corporate or unincorporated. Thus, a company is a “person” within the meaning of Chapter V of the constitution which is headed “Protection of Fundamental Rights and Freedoms of the Individual” and would be entitled to all the rights and freedoms given to a “person” which it is capable of enjoying. The word “individual” can be misunderstood. It is not defined in the Constitution nor in the Interpretation and General Provisions Act (Cap 2). But the meaning of it in the context in which it is used is clear. If a right or freedom is given to a “person” and is, from its nature, capable of being enjoyed by a “corporation” then a “corporation” can claim it although it is included in the list of rights and freedoms of the individual”. The word “individual” like the word “person”, does, where the context so requires include a corporation. The word must be construed as extending, not merely to what is commonly referred to as an individual person, but to a company or corporation. Supposing the right to be given by a special Act of Parliament to a limited company, it seems impossible to suppose that they would not be within the word “individual”. “Individual” seems to be any legal person who is not the general public.”

32. The same issue was also dealt with by Nyamu, J (as he then was) in Mureithi & 2 Others (for Mbari ya Murathimi Clan) vs. Attorney General & 5 Others Nairobi HCMCA No. 158 of 2005 [2006] 1 KLR 443as follows:

“The function of standing rules include: to restrict access to judicial review; to protect public bodies from vexatious litigants with no real interest in the outcome of the case but just a desire to make things difficult for the Government. Such litigants do not exist in real life – if they did the requirement for leave would take care of this; to prevent the conduct of Government business being unduly hampered and delayed by excessive litigation; to reduce the risk that civil servants will behave in over cautious and unhelpful ways in dealing with citizens for fear of being sued if things go wrong; to ration scarce judicial resources; to ensure that the argument on the merit is presented in the best possible way, by a person with a real interest in presenting it (but quality of presentation and personal interest do not always go together); to ensure that people do not meddle paternalistically in affairs of others…Judicial review courts have generally adopted a very liberal approach on standing for the reason that judicial review is now regarded as an important pillar in vindicating the rule of law and constitutionalism. Thus a party who wants to challenge illegality, unreasonableness, arbitrariness, irrationality and abuse of power just to name a few interventions ought to be given a hearing by a court of law…The other reason is that although initially it was feared that the relaxation of standing would open floodgates of litigation and overwhelm the Courts this has in fact not happened and statistics reveal or show that on the ground, there are very few busybodies in this area. In addition, the path by eminent jurists in many countries highlighting on the need for the courts being broadminded on the issue….Under the English Order 53 now replaced in that country since 1977 and which applies to us by virtue of the Law Reform Act Cap 26 the test of locus standi is that a person is aggrieved. After 1977 the test is whether the applicant has sufficient interest in the matter to which the application relates. The statutory phrase “person aggrieved” was treated as a question of fact – “grievances are not to be measured in pounds and pence”…Although under statute our test is that of sufficient interest my view is that the horse has bolted and has left the stable – it would be difficult to restrain the great achievements in this area, which achievements have been attained on a case to case basis. It will be equally difficult to restrain the public spirited citizen or well organised and well equipped pressure groups from articulating issues of public law in our courts. It is for this reason that I think Courts have a wide discretion on the issue of standing and should use it well in the circumstances of each case. The words person aggrieved are of wide import and should not be subjected to a restricted interpretation. They do not include, if course, a mere busybody who is interfering in things that do not concern him but this include a person who has a genuine grievance because an order has been made which prejudicially affects his interests and the rights of citizens to enter the lists for the benefit of the public or a section of the public, of which they themselves are members. A direct financial or legal interest is not required in the test of sufficient interest…”

33. What comes from the foregoing is that the Courts have moved away from the strict interpretation of the locus standi rule in public law litigation that reached its peak in Maathai vs. Kenya Times Media Trust Ltd [1989] KLR 267 where Dugdale, J held that only the Attorney General could sue on behalf of the public. It is now clear from the current constitutional dispensation that the Court ought to interpret the rule relating to locus standi liberally so as not to lock out persons with genuine grievances from accessing the seat of justice.

34. In Mureithi Case (supra) the learned Judge proceeded:

“In my viewthe Courts must resist the temptation to try and contain judicial review in a straight jacket. Even on the important principle of establishing standing for the purposes of judicial review the Courts must resist being rigidly chained to the past defined situations of standing and look at the nature of the matter before them…The applicants are members of a Kikuyu clan which contends that during the Mau Mau war (colonial emergency) in 1955 their clan land was unlawfully acquired because the then colonial Governor and subsequently the presidents of the Independent Kenya Nation did not have the power to alienate clan or trust land for private purpose or at all. In terms of Order 53 they are “persons directly affected”. I find no basis for giving those words a different meaning to that set out in the case law above. The Court has to adopt a purposive interpretation. I have no hesitation in finding that the clan members and their successors are sufficiently aggrieved since they claim an interest in the parcels of land which they allege was clan and trust land and which is now part of a vibrant Municipality. I find it in order that the applicants represent themselves as individuals and the wider clan and I unequivocally hold that they have the required standing to bring the matter to this Court. Moreover in this case I find a strong link between standing and at least one ground for intervention – the claim that the land belonged to the clan and finally there cannot be a better challenger than members of the affected clan.”

35. It is therefore clear that over time the issue of standing, particularly in public law litigation has been greatly relaxed and in our case the Constitution has opened the doors of the Courts very wide to welcome any person who has bona fide grounds that the Constitution has been or is threatened with contravention to approach the Court for an appropriate relief. In fact, since Article 3(1) of the Constitution places an obligation on every person to respect, uphold and defend the Constitution, the invitation to approach the Court for redress as long as the person hold bona fide grounds for believing that the Constitution is under threat ought to be welcome. I must however hasten to add that the liberal interpretation does not mean that the rule on locus standi is nolonger relevant in constitutional petitions. Where it is clear that the Petitioner has completely no business in bringing the matter to Court to permit such proceedings to be litigated would amount to the Court itself abetting abuse of its process.

36. In this case the Petitioner not only contends that there is not only a threat to the violation of the Constitution but that the Constitution has in fact been violated by the Respondents. In light of such allegations I cannot fault the Petitioner for instituting these proceedings and I hold that he was within his right to commence these proceedings. As to whether his case is merited is another matter. Locus standi is a totally different thing from the merits of the petitioner’s case.

37. Accordingly, that ground also fails.

38. The next issue for determination is whether this court has jurisdiction to entertain this petition.

39. It is trite where a preliminary objection is raised that goes to the jurisdiction such objection ought to be determined at the earliest opportunity. This was the position in Owners and Masters of the Motor Vessel “Joey” vs. Owners and Masters of the Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 where the Court of Appeal expressed itself as follows:

“The question of jurisdiction is a threshold issue and must be determined by a judge at the threshold stage, using such evidence as may be placed before him by the parties. 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 and 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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. It 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. There is no reason why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.”

40. Article 162 of the Constitution envisaged Parliament establishing a Court to hear and determine disputes relating to employment and labour relations. The Constitution in Article 162(3) goes further to provide that though the Employment and Labour Relations Court is a Superior Court just like the High Court, it is Parliament that confers the jurisdiction on the Employment and Labour Relations Court, as opposed to the High Court whose jurisdiction is expressly provided for in the Constitution. I must however hasten to emphasise that the Employment and Labour Relations Court is not an inferior court to the High Court since the two enjoy the same status but with different source of jurisdiction.

41. Pursuant to the said Article, Parliament enacted the Employment and Labour Relations Court Act and the jurisdiction of the Court is set out in section 12 as follows:

(1) The 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;

(b) disputes between an employer and a trade union;

(c) disputes between an employers’ organisation and a trade unions organisation;

(d) disputes between trade unions;

(e) disputes between employer organizations;

(f) disputes between an employers’ organisation and a trade union;

(g) disputes between a trade union and a member thereof;

(h) disputes between an employer’s organisation or a federation and a member thereof;

(i) disputes concerning the registration and election of trade union officials; and

(j) disputes relating to the registration and enforcement of collective agreements.

42. It is therefore clear that Parliament having in its wisdom expressly provided for the jurisdiction of the Employment and Labour Relations Court, that Court can only exercise its jurisdiction as provided for by the Statute conferring jurisdiction upon it.

43. The High Court has variously dealt with the powers of the Employment and Labour Relations Court (the ELRC). In Cabinet Secretary, Ministry of Mining & Another vs. National Environment Management Authority & 3 Others Ex-Parte Cortex Mining Kenya Limited, JR Misc. Appl. No. 298 of 2013 this Court expressed itself as follows:

“The High Court’s power and authority is derived from the Constitution and where the Constitution limits the jurisdiction of the High Court, that limit is legal and proper. Therefore it is my view that such High Court Divisions cannot be equated to the Courts established pursuant to the provisions of Article 162(2) of the Constitution. In my view by specifically creating the Courts with the status of the High Court to deal with employment and labour relations disputes on one hand and environment and land disputes on the other, the people of Kenya appreciated the importance of these specialised Courts.”

44. In United States International University (USIU) vs. Attorney General [2012] eKLR it was held that:

“Labour and employment rights are part of the Bill of Rights and are protected under Article 41 which is within the province of the Industrial Court. To exclude the jurisdiction of the Industrial Court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in section 12 of the Industrial Court Act, 2011 or to interpret the Constitution would lead to a situation where there is parallel jurisdiction between the High Court and the Industrial Court. This would give rise to forum shopping thereby undermining a stable and consistent application of employment and labour law. Litigants and ingenious lawyers would contrive causes of action designed to remove them from the scope of the Industrial Court. Such a situation would lead to diminishing the status of the Industrial Court and recurrence of the situation obtaining before the establishment of the current Industrial Court.”

45. This was the position adopted by the Court of Appeal’s dicta in Daniel N. Mugendi vs. Kenyatta University & 3 Others CACA No. 6/2012[2013] eKLR,where the said Court expressed itself as hereunder:

“…the industrial court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the environment and land court, when dealing with disputes involving environment and land with any claims of breaches of fundamental rights associated with the two subjects…In the same token we venture to put forth the position that as we have concluded that the Industrial Court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the Environment & Land Court, when dealing with disputes involving environment and land with any claims of breaches of fundamentals rights associated with two subjects”.

46. In Judicial Service Commission vs. Gladys Boss Shollei & Another [2014] eKLR, the Court of Appeal (Okwengu, JA) held at paragraphs 39 to 44 that:

“[39] Under Section 12(3),the Industrial Court has powers to make interim preservatory injunctive orders, prohibitory orders, orders of specific performance, declaratory orders, award of compensation or damages, an order for reinstatement, and any other relief as the court may deem appropriate. As already observed at paragraph 3 & 4 (supra), the reliefs sought by the respondent in her petition were orders of Judicial Review and Declaratory Orders in regard to violation of her constitutional rights. To that extent, the application was a constitutional reference. Nonetheless, the violations alleged by the respondent arose from a dispute in the employment relationship between the respondent and the appellant. Indeed, it was this acknowledgement that informed the consensus before the High Court to have the matter transferred to the Industrial Court for determination.

[40] Article 23(1)& Article 165(3)(b)of the Constitution grants the High Court powers to hear and determine questions involving redress of violations or infringement or threatened violations of fundamental rights and freedoms in the Bill of Rights. However, Article 23(2)provides for legislation giving original jurisdiction to subordinate courts to hear and determine disputes for enforcement of fundamental rights and freedom. In addition, Article 23(3)does not limit jurisdiction in the granting of relief in proceedings for enforcement of fundamental rights to the High Court only, but empowers “a court” to grant appropriate relief including orders of Judicial Review in the enforcement of rights and fundamental freedoms under the Bill of Rights. Also of note is Article 20(3)that places an obligation on “any court” in applying a provision of the Bill of Rights to develop the law and to adopt the interpretation that most favours the enforcement of a right or fundamental freedom. These provisions confirm that the Constitution does not give exclusive jurisdiction in the enforcement of the Bill of Rights to the High Court, but anticipates the enforcement of the Bill of Rights by other Courts.

[41] Under Article 162(2)(a),the Constitution has provided for special Courts with the “status” of the High Court to determine employment and labour relations disputes. The fact that the Industrial Court has been given the “status” of the High Court enhances the power and discretion of the Court in granting relief. In my considered view, the general power provided to the Industrial Court under Section 12(3)(viii)of the Industrial Court Act to grant relief as may be appropriate, read together with Article 23(3),empowers the Industrial Court to grant the kind of reliefs that the respondent sought in her petition.

[42] In my view to hold that the Industrial Court has no jurisdiction to hear and determine a petition seeking redress of violations of fundamental rights arising from an employment relationship would defeat the intention and spirit of the Constitution in establishing special courts to deal with employment and labour disputes. Indeed, such a stance would not only be inimical to justice, but would expressly contravene Article 20 of the Constitution that provides that the Bill of Rights “applies to all law and binds all state organs and persons”, and enjoins a court to promote the spirit, purport and objects of the Bill of rights and adopt an interpretation that most favours the enforcement of a right or fundamental freedom.

[43] From the respondent’s petition, it was evident that although the dispute between the appellant and the respondent was anchored on the employment labour relationship, the respondent’s claim arose from the alleged violation of her fundamental rights in the disciplinary process.

[44] The above pleading is consistent with the prayers for orders of Judicial Review and declaratory orders that were sought by the respondent in her petition. In this regard, the respondent’s position is distinguishable from that in Prof. Daniel M. Mugendi v Kenyatta University & Others(supra) where although the claim filed in the Constitutional Court sought to enforce fundamental rights, only breaches of the contract of employment were set out in the petition and no concise or specific allegations of violations of rights under the Constitution were pleaded. I would nonetheless reiterate what this court (differently constituted) stated in the Mugendi case whilst setting aside the High Court order striking out that petition for want of jurisdiction and directing that the petition be transferred to the Industrial Court for determination, that the Industrial Court can determine Industrial and labour relation matters alongside claims of fundamental rights ancillary and incidental to those matters.”

47. Article 23(3) of the Constitution provides that:

In any proceedings brought under Article 22, a court may grant appropriate relief, including––

(a) a declaration of rights;

(b) an injunction;

(c) a conservatory order;

(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;

(e) an order for compensation; and

(f)an order of judicial review.

48. The question that arises is which courts have the powers to issue reliefs under Article 23? Article 22(2) of the Constitution provides that:

Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

49. In my view a court that has jurisdiction to deal with Article 22, whether it is the High Court or any other Court must necessarily have the powers to issue the reliefs under Article 23(3) thereof. That is my understanding of the decision of Judicial Service Commission vs. Gladys Boss Shollei & Another (supra) in which Kiage, JA held that:

“It is clear from the foregoing that far from limiting this Bill of Rights- enforcement jurisdiction to the High Court or to superior courts, the Constitution expects that such jurisdiction be found in subordinate courts as well. It matters not that the jurisdiction-donating legislation is yet to be enacted. It is enough for the point to be made that the Constitution does not commit its application and enforcement to a narrow and rarefied forum. It would therefore be a misdirection for argument to be made that the superior courts contemplated by Article 162 must consider the Constitution and its application and interpretation, even when touching on matters fundamentally within the special competence of those courts, as anathema. The law, as I understand it, is that whereas those courts may not embark on a generalized handling of Bill of Rights disputes, they would definitely be entitled and are jurisdictionally empowered to address such constitutional issues as arise directly and in relation to the matters within their jurisdictional competence and specialization… I am firmly of the view that this remains the correct position, for it is not uncommon for allegations of violation of constitutional rights to be made out within the context of and related to the employment relationship. It would be absurd and quite inimical to the self-evident duty of efficient, timely and cost-effective delivery of justice were a complaining party to be required to deal with the contractual aspect proper before the Industrial Court and then file separate proceedings at the High Court with regard to the violation of rights.”

50. Therefore, in United States International University –v- Attorney General (supra), Daniel Mugendi vs. Kenyatta University(supra) and Judicial Service Commission vs. Gladys Boss Shollei & Another (supra) the courts returned the verdict that the High Court could not deal with and determine matters where a purely labour and industrial dispute also had constitutional issues arising.

51. Similarly, pursuant to Article 23(3) of the Constitution as read with section 12(3) of the Employment and Labour Relations Court Act, it is my view that the Employment and Labour Relations Court can grant reliefs in a constitutional petition. However, the jurisdiction to do so is confined to matters falling within Article 41 of the Constitution as read with section 12 of the Employment and Labour Relations Court Act. The Court cannot therefore purport entertain petitions outside the aforesaid matters as its jurisdiction is limited only in so far as employment matters and matters related thereto are concerned. In my view the matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialised Courts. However, as stated above, the Employment and Labour Relations Court may not embark on a generalized handling of petitions but is entitled to and is jurisdictionally empowered to address such matters if they arise directly and in relation to the matters within the court’s jurisdictional competence and specialization. Accordingly, where the matters raised fall both within their jurisdiction and outside, it would be a travesty of justice for the High Court to decline jurisdiction since it would mean that in that event a litigant would be forced to institute two sets of legal proceedings. Such eventuality would do violence to the provisions of Article 159 of the Constitution. As was held in Nairobi High Court Petition No. 613 of 2014 – Patrick Musimba vs. The National Land Commission and Others:

“…it would be ridiculous and fundamentally wrong, in our view, for any court to adopt a separationalistic view or approach and insist on splitting issues between the Courts where a court is properly seized with a matter but a constitutional issue not within its obvious exclusive jurisdiction is raised.”

52. The Musimba decision therefore concluded on this issue that:

“…both the High Court and the ELC Court have a concurrent and or coordinate jurisdiction and can determine constitutional matters when raised and do touch on the environment and land. Neither the Constitution nor the ELC Act limit the High Court’s jurisdiction in this respects while a closer reading of the ELC Act reveals that the ELC Court’s jurisdiction was in 2012 limited by Parliament in so far as constitutional issues touching on land and environment are concerned but the Court of Appeal in Mugendi expressed the view that the ELC when dealing with disputes concerning the environment and land may also deal with claims of breaches of fundamental rights touching on the subject at hand. We hold that in matters constitution the ELC has jurisdiction not just when it involves clean and healthy environment but also land.”

53. This window, it has been held, is to empower the Employment and Labour Relations Court to fully handle employment matters that are exclusively reserved for it under Article 162(2) of the Constitution of Kenya 2010. This position, in my view is the true interpretation of section 12 of the Employment and Labour Relations Act Cap 234B, Laws of Kenya.

54. Therefore, the High Court does not have jurisdiction to determine matters that are a preserve of the Employment and Labour Relations Court and vice versa. This was the position in Malindi Law Society vs. Attorney General & 4 Others [2016] eKLR,in which the Court observed as follows:

“102. It is correct that Article 165(5) of the Constitution prohibits the High Court from exercising jurisdiction on matters of employment and labour relations, and matters of environment, use, occupation and title to land. It is also correct that there is no corresponding provision denying courts of equal status jurisdiction on matters other than “employment and labour relations, and use, occupation of and title to land”.”

55. The Supreme Court inRepublic vs. Karisa Chengo & 2 Others [2017] eKLR was categorical in holding that:

“As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court…From a reading of the statutes regulating the specialized Courts (ELRC & ELC), it is a logical inference, in our view, that their jurisdictions are limited to the matters provided for in those statutes.”

56. The High Court in Nairobi in Kenya Universities Staff Union vs. University Council of Masinde Muliro University of Science and Technology & 2 Others [2018] eKLR held that:

“….the jurisdiction of the Employment and Labour Relations Court in matters in respect of the violation of human rights and fundamental freedoms are confined to matters falling within Article 41 of the Constitution…In other words, the matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialized Courts. That is my understanding of the holding in United States International University (USIU) vs. Attorney General (supra).”

57. In Patrick Musimba vs. National Land Commission & 4 Others [2015] eKLR a 5 judge Bench held that;

“It is to be noted that in both United States International University –v- Attorney General (supra) and Daniel Mugendi –v- Kenyatta University (supra) the question was whether the High Court could continue to deal with and determine matters in light of the establishment of the ELRC where a purely labour and industrial dispute also had constitutional issues arising. The two courts returned the verdict that the High Court could not…While the High Court’s jurisdiction is founded under Article 165 of the Constitution, it is certainly not erroneous to argue that the jurisdictions of the courts established pursuant to Article 162(2) are mainly statutory…The jurisdiction of these two courts, as directed by Article 162(3) of the Constitution was to be determined by Parliament.”

58. It is with this in mind that I appreciate the decision of the South African Constitutional Court decision in Gcaba vs. Minister for Safety and Security and Others CCT 64/088 [2009] ZACC 26, a decision cited with approval in Karisa Chengo & Others vs. Republic (2015) e KLR in which it was held that:

“However, another principle or policy consideration is that the Constitution recognises the need for specificity and specialisation in a modern and complex society under the rule of law. Therefore, a wide range of rights and the respective areas of law in which they apply are explicitly recognised in the Constitution. Different kinds of relationships between citizens and the state and citizens amongst each other are dealt with in different provisions. The legislature is sometimes specifically mandated to create detailed legislation for a particular area, like equality, just administrative action (PAJA) and labour relations (LRA). Once a set of carefully-crafted rules and structures has been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that particular system. This was emphasised in Chirwa by both Skweyiya J and Ngcobo J. If litigants are at liberty to relegate the finely-tuned dispute resolution structures created by the LRA, a dual system of law could fester in cases of dismissal of employees. Following from the previous points, forum shopping by litigants is not desirable. Once a litigant has chosen a particular cause of action and system of remedies (for example, the structures provided for by the LRA) she or he should not be allowed to abandon that cause as soon as a negative decision or event is encountered. One may especially not want litigants to “relegate” the LRA dispensation because they do not “trust” its structures to do justice as much as the High Court could be trusted. After all, the LRA structures were created for the very purpose of dealing with labour matters, as stated in the relevant parts of the two majority judgments in Chirwa, referred to above.”

59. The holding in Chirwa vs. Transnet Limited and Others [2007] ZACC 23; 2008 (3) BCLR 251 (CC); 2008 (4) SA 367 (CC) was to the effect that:

“the existence of a purpose-built employment framework in the form of the LRA and associated legislation infers that labour processes and forums should take precedence over non-purpose-built processes and forums in situations involving employment-related matters. At the least, litigation in terms of the LRA should be seen as the more appropriate route to pursue. Where an alternative cause of action can be sustained in matters arising out of an employment relationship, in which the employee alleges unfair dismissal or an unfair labour practice by the employer, it is in the first instance through the mechanisms established by the LRA that the employee should pursue her or his claims…Where…an employee alleges non-compliance with provisions of the LRA, the employee must seek the remedy in the LRA. The employee cannot…avoid the dispute resolution mechanisms provided for in the LRA by alleging a violation of a constitutional right in the Bill of Rights. It could not have been the intention of the Legislature to allow an employee to raise what is essentially a labour dispute under the LRA as a constitutional issue under the provisions of section 157(2). To hold otherwise would frustrate the primary objects of the LRA and permit an astute litigant to bypass the dispute resolution provisions of the LRA.”

60. I therefore agree that the Employment and Labour Relations Court Act, and Articles 162(2) and 165(5) of the Constitution must all be interpreted in a manner as to allow the Employment and Labour Relations Court to have the powers to grant appropriate remedies when an employment or labour relations matter is before it.

61. I agree that jurisdiction is the power of a court over the nature of a case and the type of remedy demanded and that generally there are two categories of jurisdiction; personal jurisdiction and subject matter jurisdiction.I also concur with the view expressed in Okiya Omtatah Okoiti & Another vs. Attorney General & 2 Others [2015] eKLR where it was noted that:

“Personal jurisdiction is the constitutional requirement that a defendant have certain minimum contacts with the forum in which the court sits so that the court may exercise power over the defendant. Subject-matter jurisdiction is the requirement that the court have power to hear the specific kind of claim that is brought to that court.”

62. What that decision holds is that in determining whether the court has jurisdiction or not, the court must also take into account the subject matter of the dispute vis-à-vis the issues contemplated by the particular statute under consideration. In this case section 12 of the Employment and Labour Relations Court Act expressly provides for the issues which fall for exclusive determination by the Employment and Labour Relations Court and these are, firstly, all disputes referred to it in accordance with Article 162(2) of the Constitution. Article 162 refers to the Court disputes relating to employment and labour relations but proceeds to state that Parliament is to determine the jurisdiction and functions of the courts contemplated in clause. Accordingly, without making reference to the Employment and Labour Relations Court Act not much assistance as regards the actual jurisdiction and functions of the Employment and Labour Relations Court can be gathered from the Article. However, the Employment and Labour Relations Court Act provides these functions and matters as including disputes relating to or arising out of employment between an employer and an employee; disputes between an employer and a trade union; disputes between an employers’ organisation and a trade unions organisation; disputes between trade unions; disputes between employer organizations; disputes between an employers’ organisation and a trade union; disputes between a trade union and a member thereof; disputes between an employer’s organisation or a federation and a member thereof; disputes concerning the registration and election of trade union officials; and disputes relating to the registration and enforcement of collective agreements. Obviously, all the other scenarios, apart from employer relationship are far removed from the circumstances of this petition which challenge the manner in which the Respondents treat persons joining the judiciary as judges from outside the judiciary vis-à-vis those from within. As was rightly appreciated by Nduma, J in Nick Githinji Ndichu vs. Clerk, Kiambu County Assembly & Another [2014] eKLR at paragraph 13 and 14:

“…the law is not concerned with the method of acquiring an employee. The law does not concern itself with whether the person was appointed or elected. Rather, the person must;

(i) be having an oral or written contract of service;

(ii) be providing a service to a real or legal person;

(iii) be receiving a wage / salary for the services rendered.

If such a person has a dispute with the person with whom he/she has a contract of service and to whom he / she provides services for a wage or salary, the court has jurisdiction over such dispute and has available remedies for that purpose.

It is the Court’s finding that the Petitioner has a relationship with all the above attributes with the 2nd Respondent. This Court has therefore got jurisdiction over this matter.”

63. That the Employment and Labour Relation’s Court’s jurisdiction is restricted to where there exists employer and employee relationship has been the subject of several decisions in our jurisdiction. In Joy Brenda Masinde vs. Law Society of Kenya & another [2015] eKLR, the Petitioner filed a Petition in the High Court challenging the legality of an advertisement placed in the Daily Nation Newspaper by the Law Society ofKenya,inviting applications for the position of Secretary/Chief Executive Officer. Certain requirements/qualifications were included in the said advertisement, being that the applicant must hold a Bachelor of Laws Degree, be an Advocate of the High Court of Kenya of not less than ten (10) years standing and be a Certified Public Secretary of not less than five (5) years standing and possess experience and knowledge in management. The Petitioner challenged the requirements that an applicant for the post must be a Certified Public Secretary arguing that such a requirement is not included in Section 26 (a) of the Law Society of Kenya Act 2014. In declining to uphold the preliminary objection based on jurisdiction the court held that:

“The petitioner herein had merely expressed an intention to apply for the advertised position. She had not yet been recruited and as such cannot be said to be an employee…From the above definition it is quite clear that no employment relationship exists between the petitioner and the 1st respondent…The matter or question in issue in this petition is the legality of the decision by the 1st respondent to introduce a qualification for the position of Secretary/CEO which is not provided by Statute being Section 26(4) of the Law Society of Kenya Act. The matter for determination is not a recruitment issue. Rather it is a purely constitutional issue which this court has jurisdiction to determine by virtue of Article 165(3) of the Constitution. The question is whether the 1st respondent a statutory body in any way exceeded its mandate and in so doing infringed upon the rights of the petitioner. This is not a labour dispute. I find that these are questions not for the Employment and Labour Relations Court but rather are for determination by the High Court.”

64. Similarly, in Philip Wanyonyi Wekesa & 2 Others vs. Clerk to County Assembly of Bungoma & 4 Others [2018] eKLR, the Speaker of the County Assembly convened a special sitting where the Interested Party and another were approved for appointment to the County Assembly Service Board in spite of contentions by the Petitioner which had been filed in form of a petition to the County Assembly to the effect that the process of nomination and approval of the Interested Party and another was not undertaken in a manner contemplated by the constitution and was in violation of Article 1, 2, 3, 10, 21, 24, 73, 174 and 232 of the Constitution. Dealing with the issue whether the court had jurisdiction to entertain the petition, the court relied on the holding of Nduma, J in the case of Nick Githinji Ndichu vs. Clerk Kiambu County Assembly and Another [2014] eKLR and held that;

“For one to access the jurisdiction at ELRC he must demonstrate that there exists an employer – employee relationship; that there is an oral or written contract of service or that the issue is a dispute falls within the provision of Section 12(1) of the ELRC Act. Though Advertisement, Shortlisting, Interviewing are all steps towards recruitment and steps towards creating an employer – employee relationship, they are not in my view envisaged in Section 12 of Employment and Labour Relations Court Act and which will place this petition under the jurisdiction of the Employment and Labour Relations Court.

There being no contract of employment yet, between the interested party and Respondents, this is not a dispute envisaged in Section 12(1) of the ELRC Act which would oust the jurisdiction of this Court. I therefore find this court has jurisdiction to hear and determine the Petition.”

65. In Stephen Sogoni Chune vs. County Government of Bungoma & Another [2018] eKLR, the Petitioner responded to the advertisement by Bungoma Public Service Board in Nation Newspaper by applying for county chief officer’s lands, urban/physical planning and housing. He met all the requirements set out in the advertisement and also the requirements of Chapter 6 of the Constitution. On 29th June, 2018 he noticed that he had not been shortlisted as per the list of shortlisted candidates published in the Daily Nation. He noticed that all the shortlisted candidates were from one tribe and that his not being shortlisted was a discriminatory act which is repugnant to the provisions and spirit of the Kenyan Constitution 2010. He therefore filed the Petition seeking the relevant reliefs. The Respondent filed a Preliminary Objection challenging the jurisdiction of the high court to hear and determine the Petition. The Court in declining to uphold the preliminary objection based on jurisdiction held that:

“In determining whether this court has jurisdiction to handle this matte or not, I relent back to similar cases which have been dealt by this Court in similar circumstances. The list under Section 12 of the Employment and Labour Relations Court Act states that the court can deal with any matter arising out an employment relationship. Nduma J in Nick Githinji Ndichu Vs. Clerk Kiambu County Assembly and Another [2014] eKLR where he held as follows:

…………………………………………………………………………………………

For one to access the jurisdiction at ELRC he must demonstrate that there exists an employer – employee relationship; that there is an oral or written contract of service or that the issue is a dispute falls within the provision of Section 12(1) of the ELRC Act. Though Advertisement, Shortlisting, Interviewing are all steps towards recruitment and steps towards creating an employer – employee relationship, they are not in my view envisaged in Section 12 and which will place this petition under the jurisdiction of the Employment and Labour Relations Court. That being so I find that this court has jurisdiction to hear and determine this petition and dismiss the preliminary objection by the Respondent.”

66. This Court in Kenya Universities Staff Union vs. University Council of Masinde Muliro University of Science and Technology & 2 Others [2018] eKLR. Was confronted with a case in which the Ethics and Anti-Corruption Commission (2nd Interested Party) was carrying out investigations into allegations of abuse of office, embezzlement of funds and employment irregularities against the Vice Chancellor (1st interested party) of Masinde Muliro University of Science and Technology (1st Respondent). In the course of the said investigations, the 1st interested party was alleged to intimidate staff involved in the process through transfer, demotions, interdictions and dismissals. The 2nd Interested party had recommended for suspension of the 1st interested party but the Respondents had failed to suspend the 1st interested party which failure prompted the Petitioner to file the Petition to the high court to compel the Respondents to suspend the 1st Interested Party. The Respondent filed a Preliminary Objection to the effect that the high court lacks jurisdiction to determine the subject matter which revolves around the issue of transfer of staff, demotions, interdictions and staff dismissal being undertaken by the 1st interested party in order to intimidate the staff involved in the investigations. The Court held that:

“Employment and Labour Relations Court can grant orders of judicial review. However, the jurisdiction to do so is confined to matters falling within Article 41 of the Constitution…matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialized Courts. However, where the matters raised fall both within their jurisdiction and outside (concurrent and or coordinate jurisdiction), it would be a travesty of justice for the High Court to decline jurisdiction since it would mean that in that event a litigant would be forced to institute two sets of legal proceedings. Such eventuality would do violence to the provisions of Article 159 of the Constitution. In concurrent jurisdiction, it is the cause of action that determines which Court is to hear the dispute. It follows that this matter falls within the jurisdiction of the High Court…This application be heard and determined by the Anti-Corruption and Economic Crimes Division of this Court.”

67. In this case, it is clear that the determination of this petition will not be restricted to the rights of the judges already in service but will also determine the manner in which future judges are treated. In other words, the petition seeks to address future violation of human rights and fundamental freedoms falling within Article 41 of the Constitution. Accordingly, the issue in dispute does not fall entirely within the ambit of section 12(1) of the Employment and Labour Relations Court Act. It traverses that section and seeks to address matters that do not entirely fall thereunder

68. Therefore, the matter for determination in this petition cannot be treated as a purely recruitment or employment issue or one that deals purely with labour relations; rather it is a constitutional issue which this court has jurisdiction to determine by virtue of Article 165(3) of the Constitution. The question is whether the respondents have infringed upon the rights of both the serving judges and other potential judges which is not a labour dispute. Therefore, these are not exclusive questions for the Employment and Labour Relations Court but rather are for determination by the High Court.

Order

69. In the premises both the application dated 19th March, 2019 and the preliminary objection dated 30th January, 2019 fails and are dismissed but with no order as to costs since none of the parties complied with the court’s directions to furnish soft copies of the pleadings and submissions.

70. It is so ordered.

Read, signed and delivered in open Court at Machakos this 25th day of June, 2019

G V ODUNGA

JUDGE

Delivered the presence of:

Ms Dawa for Mr Miller for the Petitioner

Mr Wamasa for the 2nd Respondent

Miss Mbuvi for Mrs Wafula for the 1st Respondent

CA Geoffrey