[2022] KEHC 2500 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: Odunga, J

PETITION NO. E9 OF 2021

IN IN THE MATTER OF: ARTICLES 2, 3(1),10,19,20,21,22(1),23,27,47(1)(2), 50,

159, 258 and 259 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS

IN THE MATTER OF: VIOLATION OF RIGHTS TO A FAIR ADMINISTRATIVE ACTION

AND

IN THE MATTER OF: DISREGARD OF THE UNIVERSITIES ACT

OF 2012 AND MACHAKOS UNIVERSITY STATUTE

BETWEEN

DR.WYCLIFFE AMUKOWA.................................1ST PETITIONER

DR.PETER KIBET KOECH..................................2ND PETITIONER

PROFESSOR HENRY ETENDE AMBEYWA....3RD PETITIONER

VERSUS

MACHAKOS UNIVERSITY......................................RESPONDENT

RULING

1. By a Petition dated 6th July, 2021 and filed on 7th July, 2021, the Petitioners contend that they are employees of the Respondent. According to the Petitioners, the Respondent did post an undated Internal Advert which was declaring various Respondent’s positions vacant to which they responded by placing their application before the deadline. They however, date on 30th April, 2021. learnt, through reliable sources, that shortlisting had been done leaving out their names though the decision was not formally communicated to them. Being aware of the Respondents’ recruitments, promotion and criteria for academic and non-academic staff, they lodged their appeals as well as the Petition to the Respondent’s Vice Chancellor asserting that the exercise had been conducted in contravention of the recruitment and promotion criteria policy guidelines and in glaring contravention of the Machakos University statutes.

2. The Petitioners state that the Vice Chancellor responded to their appeals stating that the process was ongoing and the Petitioners would be informed of the outcome through an internal procedure once the process is complete. According to the Petitioners, the Respondent cannot be allowed to proceed with an illegal process whose outcome will be tainted with illegalities. It is the Petitioners’ assertion that the process is being conducted capriciously and illegally hence an affront to the rule of law and that this amounts to infringement to their fundamental rights and freedom as envisaged in Articles 2, 21,22,23,27,30,48,50,159 of the Constitution and renders the process void ab initio.

3. Consequently, the petitioners seek the following orders:-

a.The Exercise of recruitment commenced with the indicated advert for applications to various vacancies at Machakos University before Tuesday 30th April, 2021 and all ensuing subsequent proceedings thereto be declared null and void.

b.Any short listing appointment, promotion conducted pursuant to the impugned process be nullified.

c.Cost of the Petition.

d.Any other order this court may deem fit to grant in the circumstances.

4. Contemporaneously with the Petition, the Petitioners filed a Notice of Motion dated 6th July, 2021 wherein they sought an order of injunction to stop the Respondent, its agents, officers from shortlisting, conducting, appointing, promoting or in any other manner proceeding with the process of recruitment.

5. In opposition to the Petition and the Notice of Motion, the Respondent filed the Notice of Preliminary Objection dated 13th July, 2021 stating:-

(1) THAT this Honourable court has no jurisdiction to hear, entertain and/or determine the Petition and the Notice of Motion Application dated 6th July, 2021 herein as it is a dispute between employees and their employer and which dispute falls within the realm of Section 12 of the Employment and Labour Relations Court Act, Cap 234B of the Laws of Kenya as read with Article 165 of the Constitution of Kenya, 2021.

(2) THAT the underlying complaint is alleged unlawful recruitment commenced by the Respondent and therefore the court with original jurisdiction to hear the same is the Employment and Labour Relations Court and not this court

(3) THAT it is not permissible for the Petitioners to found the subject cause of action directly to this court.

(4) THAT the Petition filed herein is incompetent, fatally defective, misplaced and bare of any reasonable cause(s) of action, ground(s) or proof to warrant the grant of the orders sought and the same should be struck out.

(5) THAT consequently this Petition is an abuse of this Honourable court process and should be struck out with costs to the Respondent.

6. On behalf of the Respondent, it is submitted that this court does not have jurisdiction to hear and determine this matter. According to the Respondent, the matter is between the Petitioners who are employees of the Respondent hence a dispute that arises out of the employment relationship hence the matter falls within the jurisdiction of the Employment and Labour Relations Court and not this court. Reliance for this proposition was placed on Kenya Limited London Distillers & Another vs. Kenya Union of Commercial Food Allied Workers Union (2021) eKLR, Ali Jarso Wako & Another vs. Ministry of Interior & Coordination of National Government & 5 Others; Public Service Commission & 5 Others (Interested Parties) (2020) eKLR and Evans Ladtema Muswahili & Another vs. Vihiga County Public Service Board & Another [2021] eKLR.

7. As this court is bereft of jurisdiction, it was submitted that the matter should have been filed before he Employment and Labour Relations Court since it is that the court that can address both employment aspects of the dispute as well as the constitutional aspects. This Court was therefore urged to strike out the Petition with costs.

8. In response to the objection, it was submitted on behalf of the petitioners that though the Petitioners are employees of the Respondent, the gist of the Petition is not a labour dispute but rather, the manner in which the process of recruitment and short listing is being undertaken. To the Petitioners, that process which is likely to lead to promotion and/or employment of any applicant to the declared vacancies, is acting ultra viresthe Universities Act No.12 of 2012 and the Machakos University statutes hence violating Article 10 of the Constitution on National Values and Principals of good governance. According to the Petitioners, the Petition does not raise a labour dispute between the applicants and Respondent.

9. As to what amounts to a labour dispute, the Petitioners made reference to Section 87 of the Employment Act. The Petitioners also made reference to the definition of “Trade Dispute” under Section 2 of the Labour Relation Act being “a dispute or difference or an apprehend dispute or difference between employers and employees, between employers’ organization and employees or trade unions, concerning any employment matter and includes disputes regarding the dismissal, suspension or redundancy of employees, allocation of work or the recognition of a trade union.”

10. According to the Petitioners, the Petition is concerned with the process of recruitment conducted without following the laid down procedures under the Respondent’s statutes which governs the promotion criteria for academic and non-academic staff. In support of their submissions, the Petitioners relied on the case of Solo Nzuki vs. Salaries and Remuneration Commission and 2 Others (2019) eKLR where the jurisdiction of this court was challenged and court held that pursuant to Article 23(3) of the Constitution as read with Section 12(3) of the Employment and Labour Relations Court Act court can grant reliefs in a constitutional petition but the court held that the jurisdiction to do so is confined within Article 41 of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act.

11. The Petitioners urged the court to find that the Preliminary Objection is misplaced, and lacks merit and ought to be dismissed with costs as the court will need to hear evidence on how the Respondent has violated the law.

Determination

12. I have considered the submissions filed and court decisions relied upon.

13. The Respondent has raised a preliminary objection contending that this court is bereft of jurisdiction since the matter involves a dispute arising from an employment relationship.

14. In Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1, Nyarangi, JAexpressed himself as follows:

“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake both of these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given...Jurisdiction is everything. 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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

15. Similarly, the Supreme Court in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others [2012] eKLR expressed itself as follows:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

16. Several decisions have been handed down by the courts regarding the issue of jurisdiction particularly what amounts to want of jurisdiction. As was held by Ochieng, J in Sammy Likuyi Adiema vs. Charles Shamwati Shisikani Kakamega HCCA No. 144 Of 2003, a Tribunal may have jurisdiction to hear and determine issues, but it may give orders, which were in excess of its powers. In effect, if a tribunal made orders beyond its powers, that is not necessarily synonymous with the tribunal lacking jurisdiction to entertain the dispute in the first place. Jurisdiction may, in my view, therefore be conferred at two levels. It may be that the Court lacks jurisdiction to entertain the dispute ab initio, in which case it ought to down its tools before taking one more step as was held in Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (K) Ltd [1989] KLR 1. It may also be that though the Court has jurisdiction to enter into the inquiry concerned it lacks the jurisdiction to grant the relief sought. It was therefore held by Sir Udo Udoma, CJ in Uganda General Trading Co. Ltd vs. N T Patel Kampala HCCC No. 351 of 1964 [1965] EA 149, expressed himself as follows:

“The objection to the jurisdiction may be due to the tendency to confuse the issue of jurisdiction with the issue of the form of action and procedure. It does not necessarily mean that because the action is not maintainable in law therefore the Court before which the case has been brought would have no jurisdiction to try it. On the other hand the court may have full jurisdiction over an action and it may yet be held that the action is not maintainable in law... The objection in the instant case is that the action is not maintainable in law because it has not been properly instituted, since the proper form and procedure which ought to originate the proceedings has not been followed. That surely cannot be an objection to the jurisdiction of the court but merely an objection to the form and procedure by which the proceedings have been originated. The mere omission to follow a prescribed procedure in instituting proceedings would not necessarily oust the jurisdiction of the court where there is one as in the instant case. It may be considered incompetent for a court with jurisdiction to exercise such jurisdiction because the matter over which jurisdiction is sought to be exercised has not been brought properly before it in accordance with a prescribed procedure and in a prescribed form. In such a case the jurisdiction of the court is not exercised because it would be incompetent to do so. Incompetency or incapability to exercise jurisdiction already possessed must therefore be distinguished from a complete want of jurisdiction, which may be regarded as a question of incapacity.”

17. A challenge to this court’s jurisdiction has been raised through the Preliminary Objection. The East African Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd. (1969) EA 696, expressed itself as follows:

Law, JA.

“So far as I am aware, a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued ass a preliminary point may dispose of the suit. Examples are an objection on the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

Newbold, P.:

“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing butt unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.”

18. This court in David Nyekorach Matsanga & Another vs. Philip Waki & 3 Others [2017] eKLR, a three judge bench of the High Court (Lenaola, J. (as he then was), Odunga and Onguto, JJ.) after considering various holdings of the Supreme Court of Kenya on question of Preliminary Objection held as follows:

“34. We quickly turn to the question whether we have before us a Preliminary Objection proper.

Of Preliminary Objections

35. Traditionally, the case ofMukisa Biscuit Manufacturing Co Ltd vs. West End Distributors Ltd [1969] EA 696has been the watershed as to what constitutes Preliminary Objections. The Court of Appeal in Nitin Properties Ltd vs. Singh Kalsi & another [1995] eKLR also pellucidly captured the legal principle when it stated as follows:

1. “...A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...”

This statement of the law has been echoed time and again by the courts: see for example, Oraro –v- Mbaja [2007] KLR 141.

36. In Hassan Ali Joho & another -v- Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR the Supreme Court stated that

“....a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit”.[emphasis ours]

37. Much more recently, the Supreme Court again reconsidered the position of parties resorting to the use of Preliminary Objections and pronounced itself as follows in the case of Independent Electoral & Boundaries Commission –v- Jane Cheperenger & 2 Others [2015] eKLR.

2. “[21] The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to Preliminary Objections. The true Preliminary Objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the Preliminary Objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”[emphasis ours]

38. The Supreme Court thus laid it clear that the focus ought to be both the purpose as well as the nature of the Preliminary Objection. If it will serve the public purpose of sparing the sparse judicial time and also militate against profligate deployment of time and other resources then the court ought to entertain the Preliminary Objection. Of course, there is also the rider and caution that disputes are better off being resolved judicially, than summarily.

39. The same theme seems to run through subsequent Supreme Court decisions. The strict approach in Mukisa Biscuits’ case seems therefore to have been given less prominence. In the recent case of Kalpana Rawal & 2 Others v Judicial Service Commission & 6 Others [2016] eKLR the Supreme Court stated that the examples of jurisdiction and limitation given by law J.A in the Mukisa Biscuits’case were but only examples of two grounds worthy of preliminary hearing and that a checklist approach to the test as to whether a matter merited and fell under the Mukisa Biscuits case was not in consonant with the spirit and letter of the Constitution. The court then proceeded to state that where the Preliminary Objection raised a “fundamental issue” (per Mutunga CJ) then as a matter of good order it was appropriate to have the issue settled first even if there were apparent factual conflicts.

40. Pursuant to Article 163(7) of the Constitution and with the requisite deference, we are obliged to adopt the more liberal approach by the Supreme Court.

41. We hold the view that when the 1stRespondent questions the 1st Petitioner’s locus standing, it is a matter which ought to be resolved at a preliminary stage. Likewise, when the Respondents state that the 1stRespondent is immune from suits and further that the CIPEV is defunct and no suit against it may stand, then these are matters to be determined at a preliminary stage. Likewise, questions of res judicata or sub judice are best resolved at the very inception of any suit and by way of Preliminary Objection, to avoid profligate litigation and save the scarce judicial time.”

19. According to the Petitioners, the Respondent has violated Article 10 of the Constitution on National Values and Principals of Good Governance for failing to adhere to the provisions of the Universities Act 2012, Machakos University statutes 2016 and the University recruitment and promotion criteria for academic staff and non-academic staff. The Petitioners assert that their petition is in respect of flagrant violation of the law and not a labour dispute.

20. According to the Respondent the jurisdiction to hear and determine this Petition is with the Employment and Labour Relations Court which has complementary and broader jurisdiction to address the dispute. The Employment and Labour Relations Court is established under Section 4 of the Employment and Labour Relations Act, 2012 as read with Article 162(2) (a) of the Constitution. The court’s jurisdiction is provided for under Section 12 of the Employment and Labour Relations Court Act 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 union’s organisation;

(d) disputes between trade unions;

(e) disputes between employer organisations;

(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.

(2) An application, claim or complaint may be lodged with the Court by or against an employee, an employer, a trade union, an employer’s organisation, a federation, the Registrar of Trade Unions, the Cabinet Secretary or any office established under any written law for such purpose.

21. Article 165(5) of the Constitution provides that-

“The High Court shall not have jurisdiction in respect of matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or

(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).”

22. The High Court is therefore bereft of jurisdiction in matters falling within the jurisdiction of the courts contemplated under Article 162(2) of the Constitution. Although this petition is premised on Article 23 of the Constitution, 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.”

23. 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 41which 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.”

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

“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.”

25. Therefore, both United States International University –v- Attorney General (supra) and Daniel Mugendi –v- Kenyatta University(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.

26. 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, 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: where it was held that:

“…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.”

27. 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.”

28. 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 as read with Rule 28 of the Employment and Labour Relations Rules, 2016 which empower the Employment and Labour Relations Court to grant a prohibitory order and any other order to meet the ends of justice. That any other order extends to judicial review orders comes clearly in JR Case 330 of 2011- Republic vs. Kenya Ordinance Factories Corporation Ex-Parte Anne Gichimo [2014] eKLR,in which the court stated that:

“Among the orders that the court can grant is any other appropriate relief that it may deem fit. As can be seen, the other remedies provided by Section 12 are similar to the orders of certiorari, prohibition and mandamus available in judicial review. In fact the interim preservation order including injunctions that can be granted by the Industrial Court can be equated to an order of stay of proceedings available in judicial review. A prohibitory order serves the same purpose with an order of prohibition. An order of reinstatement of an employee can serve the purpose of orders of certiorari and mandamus. In my view therefore orders of judicial review as they are traditionally known or their equivalents can be obtained in the Industrial Court.”

29. I therefore agree that the Employment and Labour Relations Act, and Article 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. To buttress the holding that the said Court can grant judicial review orders in employment matters the Court of Appeal in Civil Appeal 160 of 2008 - Republic vs. Mwangi S. Kimenyi Ex-Parte Kenya Institute for Public Policy and Research Analysis (KIPPRA) [2013] eKLR stated that:

“This is not to say that judicial review remedies cannot be available in contracts of employment. There are instances when such remedies are available. One such instance is when the contract of employment has statutory underpinning and where there is gross and clear violation of fundamental rights. In the case of CHIEF CONSTABLE OF NORTH WALES POLICE – V- EVANS (1982) I WLR 1155, Lord Hailsham pronounced himself thus:

“the purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority after according fair treatment reached on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court” (See also Commissioner ofLands – vs- Kunste Hotel Limited1995-1998 1E.A. 1 (CAK)).In the case of Eric Makokha & Others – vs- Lawrence Sagini & Others CA No. 20 of 1994 at NRB, this court defined statutory underpinning. It was stated: “the word statutory underpinning is not a term of art. It has no recognized meaning. If it has, our attention was not drawn to any. Accordingly, under the normal rules of interpretation, we should give it its primary meaning. To underpin is to strengthen. In a case in which the issue is whether an employer can legitimately remove his employee, a term which suggests that his employment is guaranteed by statute is hardly of any help. As a concept, it may also mean the employees removal was forbidden by statute unless the record met certain formal laid down requirements. It means some employees in public positions may have their employment contract guaranteed by statute and could not be lawfully removed unless the formal requirements laid down by the statute were observed. It is possible that this is the true meaning of what has become the charmed words “statutory underpinning”. The statute makes it mandatory that a certain procedure must be observed in some contracts of employment before termination. Examples are constitutional office holders such as judges and the Attorney General.”

30. In this case, the Petitioners aver that according to Machakos University Statute, it is necessary to establish Promotions and Appraisals Committees before any recruitment can be lawfully conducted. In the absence of such committees, it was contended that the exercise is illegal, null and void.

31. In this case, it is clear that the Petitioners and employees of the Respondent institution. Their cause of action arises from the fact that the Respondent intends to carry out the exercise without complying with its statutes which require it to establish Promotions and Appraisals Committees. What I understand the Petitioners to be saying in not very many words is that as existing employees of the Respondent, the procedure for the said recruitment ought to take into account their status as recognised by the Respondent’s Statutes. Section 12(1) (a) of the Employment and Labour Relations Court Act confer the jurisdiction to hear and determine dispute involving an employer and employee on Employment and Labour Relations Court. Under Subsection 3(viii) the court has powers to make any other appropriate relief as the Court may deem fit to grant as well as under Section 87 of the Employment Act which confers the court the power to hear any question, difference or dispute touching on the rights or liabilities of an employee or employer. The Petitioners assert that they have been discriminated and they have not been accorded a fair hearing hence the ongoing shortlisting process should be nullified.

32. I associate myself with J.A Makau J. when he opined in London Distillers Kenya Limited & another vs. Kenya Union of Commercial Food Allied Workers Union [2021] eKLR that:-

“61. Upon consideration of the pleadings, case laws and submissions, I find that, the dispute filed herein rightly falls within the jurisdiction of the employment and Labour Relations Court. In addition thereto, I find that the jurisdiction of this Court is limited by Article 162(2) of the Constitution, that empowers the Employment and Labour Relations Court, to hear and determine all disputes, arising out of an employer and employee relationship, as well as, disputes between an employer and a trade union. It is worth noting that the ELRC in exercising its mandate, the Employment and Relations Court, being a Court of equal and concurrent status as this Court, has jurisdiction to hear and determine constitutional violations on fundamental rights and freedoms arising from an employer and employee relationship, as well as, all disputes falling under Article 41 of the Constitution, as is in this case, as well as, all disputes stipulated under Section 12 of the Employment and Labour Relations Court Act 2011. Therefore the proper Court clothed with jurisdiction to hear and determine all issues raised in this Petition is Employment and Labour Relations Court.”

33. Similarly in Ali Jarso Wako & another vs. Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 Others (Interested Parties) [2020] eKLRwhere Chitembwe J held that:-

“The issue of jurisdiction is quite crucial in that it avoids the hearing and determination of cases by superior courts hapharzadly. Issue relating to recruitment and employment of public servants or any employee belong to the Labour court. Any Constitutional issue revolving around employment or recruitment of an employee has to be dealt by the Labour Court. We cannot have Constitutional issue relating to employment or recruitment dealt by the High court and thereafter refer the other issues in the same dispute to the Labour Court.”

34. Having considered the issues raised in the preliminary objection herein, I find that the issues the subject of this petition are matters that fall squarely within the jurisdiction of the Employment and Labour Relations Court. The parties herein are in an Employer-Employee relationship. The allegations of discrimination arise from the fact of that relationship. Even the allegation of violation of Article 10 arises from the fact that the Respondent is alleged to have not taken into consideration the status of the Petitioners as given weight to the Respondents’ statutes as regards the establishment of Promotions and Appraisals Committees.

35. The Respondent urged this court to strike out the Petition with costs for lack of jurisdiction. In Equity Bank Limited vs. Bruce Mutie Mutuku T/A Diani Tour & Travel (2016) eKLR the Court of Appeal in Mombasa stated:

“In numerous decided cases, courts, including this Court, have held that it would be illegal for the High Court in exercise of its powers under section 18 of the Civil Procedure Act to transfer a suit filed in a Court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “02” principle or the overriding objective under the Civil Procedure Act, the appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation. In the same way, a Court of Law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer. In Abraham Mwangi Wamigwi –V- Simon Mbiriri Wanjiku & another [2012] eKLR, it was held as follows:-

“It is therefore trite that where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under Section 18 aforesaid to a Tribunal where it ought to have been properly instituted. The reason for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is nullity in law is in the eyes of the law nothing and therefore the court cannot purport to transfer nothing and wound it into something through a procedure known as “transfer”. In other words, courts can only transfer a cause whose existence is recognized by law.”

36. However, in Daniel N. Mugendi vs. Kenyatta University & 3 Others (2013) eKLR, the court held as follows:-

“Believing as we do that approach taken by Majanja, J. (supra) is the correct one, and in endevouring to meet the ends of justice untrammeled by procedural technicalities, we set aside the order striking out the appellant’s petition and direct that the High Court do transfer it to the Industrial Court which also has jurisdiction and authority to consider the claims of breach of fundamental rights as pertain to industrial and labour relations matters. It is only meet and proper that the Industrial Court do exclusively entertain those matters in that context and with regard to article 165(5) (b). And in order to do justice, in the event where the High Court, the Industrial Court or the Environment & Labour Court comes across a matter that ought to be litigated in any other courts, it should be prudent to have the matter transferred to that Court for hearing and determination. These three courts with similar/equal status should in the spirit of harmonization, effect the necessary transfers among themselves until such time as the citizenry is well-acquainted with the appropriate forum for each kind of claim. However, parties should not file “mixed grill” causes in any court they fancy. This will only delay dispensation of justice. 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 matter alongside claim of fundamental rights ancillary and incident to those matters, the same should go for the environment and Land Courts when dealing with dispute involving environment and land with any claims of breaches of fundamental right associated with the tow subjects.”

37. Chitembwe J.in Ali Jarso Wako & another v Ministry of Interior & Coordination of National Government & 5 others; Public Service Commission & 5 others(Interested Parties) (supra) stated:-

“In my view lack of jurisdiction is limited to the handling of the dispute at hand substantially. Transfer or referring cases to the Court withthe proper jurisdiction is an administrative matter which is aimed at facilitating the speedy disposition of the case at hand. It has nothing to do with jurisdiction. All what the Court will be saying is that “you have come to the wrong forum, please take your file to the correct forum”. I don’t think such an order needs jurisdiction or can be held as null and void. This is my honest view…”

38. It is my view that in the circumstances of this case, it would not advance the course of justice to terminate these proceedings. Since I am satisfied that the dispute can be properly dealt with by the ELRC, the order which commends itself to me and which I hereby make is that further proceedings in this petition will be undertaken by the ELRC since the said Court is a Court of equal status as the High Court and is empowered to grant the reliefs sought herein.

39. The costs will be in the cause.

40. Orders Accordingly.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 10TH DAY OF FEBRUARY, 2022.

G. V. ODUNGA

JUDGE

Ms Mary Mwangi for Mr Chege for the Respondent

CA Susan