[2017] KEHC 769 (KLR)
The court found that the dispute concerned the appointment and exercise of powers by a county chief officer for finance, which falls squarely within the realm of employment and labour relations. By virtue of Article 162(2) and Article 165(5) of the Constitution, as well as Section 12 of the Employment and Labour...
Source-derived case information.
- Citation
- [2017] KEHC 769 (KLR)
- Parties
- Applicant: Tyson Ngetich; Applicant: Kenneth Kiprotich Ngetich; Respondent: The Government of Bomet; Respondent: CPA Mitey Rono; Respondent: The County Executive Member for Finance; Respondent: County Secretary Bomet; Respondent: Bomet County Public Service Board; Respondent: The County Assembly; Respondent: The Controller of Budget
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Petition 7 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- petition dismissed for want of jurisdiction
- Judges
- GO Shikwe
- Legal Topics
- Jurisdiction of High Court, Separation of Powers, Appointment of County Officers, Employment Disputes in County Government
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tyson Ngetich
Applicant
Kenneth Kiprotich Ngetich
Applicant
The Government of Bomet
Respondent
CPA Mitey Rono
Respondent
The County Executive Member for Finance
Respondent
County Secretary Bomet
Respondent
Bomet County Public Service Board
Respondent
The County Assembly
Respondent
The Controller of Budget
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear and determine disputes relating to the appointment of a county chief officer for finance.
- 2 Whether the doctrine of separation of powers bars the court from interfering with county government operations.
- 3 Whether the dispute falls within the exclusive jurisdiction of the Employment and Labour Relations Court.
Ratio Decidendi
The court found that the dispute concerned the appointment and exercise of powers by a county chief officer for finance, which falls squarely within the realm of employment and labour relations. By virtue of Article 162(2) and Article 165(5) of the Constitution, as well as Section 12 of the Employment and Labour Relations Court Act, the High Court lacks jurisdiction to entertain such matters. The doctrine of separation of powers further precludes the court from interfering with the internal operations of another arm of government. As a result, the preliminary objection was upheld and the petition was dismissed for want of jurisdiction.
Court Disposition
petition dismissed for want of jurisdiction
Orders
- The petition is dismissed for lack of jurisdiction.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
PETITION NO. 7 OF 2017
TYSON NGETICH........................................................1ST PETITIONER
KENNETH KIPROTICH NGETICH.........................2ND PETITIONER
=VERSUS=
THE GOVERNMENT OF BOMET...........................1ST RESPONDENT
CPA MITEY RONO....................................................2ND RESPONDENT
THE COUNTY EXECUTIVE
MEMBER FOR FINANCE........................................3RD RESPONDENT
COUNTY SECRETARY BOMET.............................4TH RESPONDENT
BOMET COUNTY PUBLIC SERVICE BOARD....5TH RESPONDENT
THE COUNTY ASSEMBLY.......................................6TH RESPONDENT
THE CONTROLLER OF BUDGET..........................7TH RESPONDENT
RULING
The Notice of Motion application dated 12th July 2017 seeks the following orders;-
1. Spent
2. That a conservatory order be and is hereby issued against the 2nd Respondent restraining him his assigns representatives, servants and or hirelings from purporting to act on the office of chief officer for finance or any other designation equivalent to the office of chief officer for finance, or any other designation equivalent to the office of chief officer for finance, making requisitions, authorizing any payments, signing cheques and or dealing with the finances of the 1st and 5th Respondents pending the hearing and determination of the application herein and the said order be enforced by the 3rd and 7th Respondent.
3. That a conservatory order be issued against the 2nd Respondent restraining him his assigns, representative servants or hirelings from purporting to act in the office of chief officer for finance, making requisitions, authorizing any payments, signing cheques and or dealing with the finances of the 1st and 5th Respondents pending the hearing and determination of the petition herein and the said order be enforced by the 3rd and 7th Respondent.
The Respondents filed a Notice of preliminary objections on thegrounds that:-
1. That this Honourable court lacks jurisdiction to hear and determine this matter as filed and pleaded under the doctrine of separation of powers as enshrined in articles 162 and 165 of the Constitution, no arm of government has authority to interfere with the operations of another.
2. That under S. 12 of the Employment and Labour Relations Court Act this honourable Court has no jurisdiction to grant the relief sought by the petitioner. On the date of hearing the preliminary objection the court was informed that the petitioner had put in written submissions. A perusal of the file does not show or reveal the presence of written submission or grounds of opposition. In effect the preliminary objection is not opposed.
A close reading of the grounds found in the main application are thatthe 2nd Respondent was purportedly exercising the powers of a chief officer for finance yet he had not been validly appointed and or vetted to that office by the 6th Respondent.
Appointment to the office as chief finance officer in a county falls within the armbit of employment and labour.
Article 165 (5) of the constitution provides: the High Court shall not have jurisdiction in respect of matters-
(a) Reserved for the exclusive jurisdiction of the supreme court; or
(b) Falling with the jurisdiction of the courts contemplated in article 162(2)”.
The Article 162(2) provides for system of courts thus:- parliamentshall establish courts with the status of the High Court to hear and determine the disputes relating to;
(a) Employment and labour
(b) The environment and the use of occupation of and title to land”
It follows therefore that this petition falls within the armbit ofEmployment and labour and therefore this court lacks jurisdiction to entertain it.
The petition lacks merit and its dismissed. Each party to bear its own costs.
Ruling delivered dated and signed this 11th day of October 2017 in open court and in the present of learned counsel Mr. Mugumya holding brief Matwere for 1st, 2nd, 3rd and 4th . Learned counsel for Langat for the 6th Respondent, court assistant present.
No appearance for the petitioner.
M. MUYA
JUDGE
11/10/2017
Certified copies of the ruling to be supplied to the counsels.
M. MUYA
JUDGE
11/10/2017