[2022] KEHC 10957 (KLR)

Wafula v County Government of Trans Nzoia & another (Petition E004 of 2022) [2022] KEHC 10957 (KLR) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10957 (KLR)

Republic of Kenya

In the High Court at Kitale

Petition E004 of 2022

LK Kimaru, J

June 7, 2022

IN THE MATTER OF: ARTICLES 1,2,3,4,10,19,20,22,23,27, 35, 47; 54(2): 174(D) AND 232; 235, 258, 259, 260 AND SCHEDULE 4 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE COUNTY GOVERNMENT ACT, 2012 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015 AND IN THE MATTER OF THE ACCESS TO INFORMATION ACT, 2016 AND THE PUBLIC FINANCE MANAGEMENT ACT, 2012 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013

Between

Allan Wanyonyi Wafula

Petitioner

and

County Government of Trans Nzoia

1st Respondent

Trans-Nzoia County Public Service Board

2nd Respondent

Ruling

1. Thepetitioner filed the petition herein seeking various declatory and conservatory orders that was precipitated by the 1st respondent’s decision to advertise certain positions in the County government for employment. Contemporaneous with filing the petition, he filed a notice of motion seeking interim reliefs pending the hearing and determination of the petition. This court granted temporary conservatory orders pending the hearing inter parties of the application.

2. Upon being served with the petition and the application, the respondents raised a preliminary objection to the entire petition essentially on two grounds that this court did not have jurisdiction to hear the petition because the subject matter was Labour and therefore it ought to have been filed at the Employment and Labour Relations Court (ELRC) and not before this court. Conversely the respondents asserted that even if this court were to find that it has jurisdiction, the petitioner has not exhausted all the remedies available to him under the Law specified the County Government Act, 2012 and the Public Service Commission Act, 2017. The Preliminary objection raised by the Respondents is therefore two-pronged. The petitioner does not agree with the Respondents that this court lacks jurisdiction or that he has failed to comply with any condition precedent before filing the present petition before this court.

3. This court heard oral rival submissions made by Mr. Wanyama for the respondents and by Mr. Simiyu for the Petitioner. Mr. Wanyama submitted that in so far as the subject matter of the suit is the recruitment of County Government staff, that is an issue that falls squarely within the jurisdiction of ELRC . He cited article 234(2) (1) of the Constitution, Section 77 of the County Government Act and section 85 of the Public Service Commission Act for the further argument that those seeking to challenge the recruitment process in a County government should first exhaust the procedure provided for settling disputes before purporting to file suit in court.

4. Mr. Simiyu for the petitioner opposed the Preliminary objection. He submitted that the thrust of the Petition is the petitioner’s assertion that therespondents had advertised and purported to commence recruitment of County government staff in breach ofarticle 201 and 220(2) (1) (g) of the Constitution and section 104 (1) (b) of the Public Finance Management Act. Learned Counsel submitted that the respondents commenced recruitment process without a budgetary provision for those they are seeking to employ. The petitioner argued that the issue before the court is not a labour dispute nor is it specifically challenging the recruitment of a particular individual but rather seeking to question the propriety of the recruitment in view of the fact that no budget has been prepared or approved for such recruitment.

5. Thepetitioner argues that such dispute is within the jurisdiction of this court because the petition seeks the interpretation of the Constitution and the Public Finance Management Act. He therefore urged the court to dismiss the preliminary objection.

6. This court has carefully considered the rival submissions made by the parties herein on the issues raised in the preliminary objection. Firstly, the court agrees with the holding by the Supreme Court in Samuel Kamau Macharia &anor vKenya Commercial Bank & 2others[2013] eKLR that:“A court’s jurisdiction flows from either the Constitution or legislation or both and can only exercise jurisdiction as conferred by this Constitution or written law and that it cannot arrogate to itself jurisdiction exceeding that which is conferred by upon it by the law.”

7. The Court of Appeal in Phoenix EA Assurance Company LtdvPM Thiga t/a Newspaper Service[2019] eKLR held thus on jurisdiction:“Jurisdiction is paramount in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized with jurisdiction, the court cannot confer jurisdiction to itself.”

8. The respondents are therefore within their right to challenge the jurisdiction of this court if they form the view that it lacks jurisdiction to entertain the petition before it. As stated earlier in this ruling, the Respondents preliminary objection is two- pronged; that this court lacks jurisdiction to hear the petition because it is essentially a labour dispute which ought to have been filed before the Employment and Labour Relations Court. The jurisdiction of the Employment and Labour Relations Court is provided under section 12 of the Employment and Labour Relations Court Act. The Court of Appeal in Public Service Commission & 4 others v Cheruiyot and 20 others[2022] KECA 15 (KLR) held that;“The jurisdiction of the Employment and Labour relations Court was granted under article 162(2) of the Constitution and section 12(1) of the Employment and Labour Relations Court Act, 2011. Subject to section 12, the Employment and Labour Relations Court had jurisdiction to entertain any dispute or any contemplated under section 12(1) but the dispute between the parties had to be related to their Employment and/or touching on labour relations. The jurisdiction of the Employment and Labour Relations Court is not limited to the determination of disputes arising out of a contract of employment between an employee and an employer, the court could also determine any Constitutional violations of the rights of any party arising from an employee – employer relationship.”

9. In Henry Kigen & 6 others v Baringo County Governor & 2 others[2020] Eklr, Muriithi J held thus:‘The paragraph relevant to this Petition is Section 12(1) paragraph (a) of the Employment and Labour Relation Act, which provides for jurisdiction in “(a) disputes relating to or arising out of employment between an employer and employee”. I respectfully agree with Nduma J in Ndichu case that although shortlisting and interview are part of the recruitment process, the want of an eventual employee – employer relationship denies the Employment and Labour Relation Court of the jurisdiction in the exercise of which it could deal with the bill of rights issues arising in the manner contemplated in the Chimweli, Mangeli, Shollei and Mugendi cases.”

10. From foregoing decisions, it is clear that the jurisdiction of the ELRC can only be invoked where there exists and employee-employer relationship which is not the case in this petition. Indeed, none of those who have responded to the advertisement for the positions advertised are parties to this petition . They have not yet been employed and therefore they are not yet employees of the 1st Respondent. The assertion by the Respondents that the issue in dispute is an employment matter therefore has no basis. The preliminary objection challenging the jurisdiction of this court is therefore misplaced and is hereby dismissed in that regard.

11. As to whether the issues sought to be canvassed before this court in the petition filed by the petitioner are premature, this court cannot, at this preliminary stage, make a decision regarding the same. The facts sought to be relied on are contested. They are not agreed. As was held by the court in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd[1969] EA 969, where facts cannot be ascertained or where facts are disputed, a preliminary objection cannot be raised. This is because the court cannot ascertain the facts, at a preliminary stage, without hearing such parties. In the present case, it is clear to the court that the issues relating to whether the correct forum was invoked by the Petitioner can only be determined after the court as ascertained the facts upon which the Respondent’s preliminary objection is premised.

12. From the foregoing, it is evident that the preliminary objection lacks merit. It is hereby dismissed with costs to the petitioner.

DATED AT KITALE THIS 7TH DAY OF JUNE 2022. L. KIMARUJUDGE