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Court of AppealPartially AllowedCivil Appeal No. 621 of 2019 (lead file), consolidated with Civil Appeal No. 74 of 2020

Attorney General & 2 others v Okoiti & 14 others (Civil Appeal 621 of 2019 & 74 of 2020 (Consolidated)) [2020] KECA 30 (KLR)

Court of Appeal of Kenya
18 December 2020
DMD. K. MusingaSKS. Gatembu KairuKMK. M'Inoti
7,031 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that appointments to independent commissions like the National Land Commission are constitutional matters for the High Court, not employment disputes for the ELRC.

What this practically means

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Executive summary

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The Court of Appeal (Musinga, Gatembu Kairu and M'Inoti, JJ.A) heard two consolidated appeals, with Civil Appeal No. 621 of 2019 as the lead file, against a judgment of the ELRC (Wasilwa, J.) dated 14th December 2019. That judgment had held that the selection panel for the National Land Commission was improperly constituted but that the defect did not invalidate the process, and had quashed the nomination and vetting of Ms. Mathenge and Ms. Galgalo on the ground that the National Assembly acted ultra vires. The threshold question was whether the ELRC had jurisdiction at all over the constitutionality of appointing the Commission's chairperson and members. The appellants argued there was no employer-employee relationship; some respondents countered that no notice of appeal was filed against the jurisdictional ruling. The Court held that jurisdiction may be raised at any stage, even on appeal, and no party was prejudiced. On the merits of jurisdiction, it held that commissioners of independent constitutional commissions are not employees: they enjoy security of tenure, are removed through a tribunal process akin to judges, and are independent of direction or control. Their appointment is a sui generis constitutional process, not an employment and labour relations dispute, and remuneration from the Consolidated Fund does not confer ELRC jurisdiction. The ELRC therefore had no jurisdiction to entertain the three petitions; the proper forum was the High Court. The Court declined to determine the merits of the appeal and refused costs against the petitioners, noting two of them had filed in the correct court before being transferred by court order. Civil Appeal No. 621 of 2019 was allowed to the extent that the ELRC lacked jurisdiction; the ELRC judgment was set aside and substituted with an order dismissing the petitions. Civil Appeal No. 74 of 2020 and its cross-appeals were dismissed. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the question of the ELRC's jurisdiction is properly before the Court notwithstanding that no notice of appeal was filed against the ruling of 24th September 2019
  2. 2.Whether the ELRC had jurisdiction to determine the constitutionality of the appointment of the chairperson and members of the National Land Commission
  3. 3.Whether the recruitment of commissioners of independent constitutional commissions constitutes an employment and labour relations dispute under Article 162(2)(a) of the Constitution and section 12 of the ELRC Act
  4. 4.Whether the Court should venture into the merits of the appeal (competence of the Selection Panel, publication of shortlisted candidates, and the vetting of Ms. Mathenge and Ms. Galgalo)

Key legal issues

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01

Whether the jurisdictional question was properly before the Court of Appeal absent a notice of appeal against the ELRC jurisdictional ruling

Holding

The question was properly before the Court; jurisdiction can be raised at any stage, even for the first time on appeal, and no party was prejudiced.

Reasoning

The Court surveyed authority (Adero v Ulinzi Sacco, Lemita Ole Lemein, Petrojessica Enterprises, Nyangau v Nyakwara, KCB v Osebe) establishing that jurisdiction either exists or does not exist ab initio, cannot be conferred by consent or acquiescence, and may be raised suo motu or at any stage, including on appeal. The issue had been live throughout the litigation, so no surprise or prejudice arose.

p. 9
02

Whether the ELRC had jurisdiction over the recruitment and appointment of the chairperson and members of the National Land Commission

Holding

The ELRC had no jurisdiction; the appointment of commissioners of independent constitutional commissions is not an employment and labour relations dispute but a sui generis constitutional process for the High Court.

Reasoning

Article 162(2)(a) and section 12 of the ELRC Act confine the ELRC to disputes relating to employment and labour relations between employers, employees and trade unions. Commissioners of independent commissions are not employees: they enjoy security of tenure, are removable only through a tribunal process akin to judges, and are independent and not subject to direction or control. That their remuneration is charged on the Consolidated Fund does not make them employees; on that reasoning judicial appointments would be labour disputes.

p. 2
03

Whether the specialised courts may interpret and apply the Constitution

Holding

The ELRC and ELC have jurisdiction to interpret and apply the Constitution, but only in the context of disputes falling within their specialised mandates; they lack the High Court's unlimited original jurisdiction.

Reasoning

Relying on USIU v Attorney General, Daniel N. Mugendi and Daniel Maingi Muchiri v Jubilee Insurance, the Court affirmed that specialised courts can redress constitutional violations in matters within their jurisdiction. However, Article 165(5) and the CoE Final Report confirm their jurisdiction is limited and specific, not unlimited; constitutional questions arising outside employment or land disputes belong to the High Court.

p. 12
04

Whether the Court should determine the merits of the appeal (Selection Panel composition, publication, vetting)

Holding

The Court declined to determine the merits because the ELRC lacked jurisdiction over the petitions.

Reasoning

Since the ELRC had no jurisdiction, its judgment was a nullity and the appeal had to be allowed on the jurisdictional ground alone. The Court observed that a desire to remedy constitutional violations does not justify seeking redress from a forum without power to grant a remedy; the weighty issues raised were misdirected to the wrong forum and ought to be raised in the High Court.

p. 12

Legal principles established

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  • The appointment and removal of commissioners of independent constitutional commissions is not an employment and labour relations dispute; the ELRC has no jurisdiction over such appointments, which fall within the jurisdiction of the High Court.
  • An issue of jurisdiction may be raised at any time and at any stage of proceedings, including on appeal, and no notice of appeal against an interlocutory jurisdictional ruling is required to enable an appellate court to determine jurisdiction.
  • The jurisdiction of the ELRC and ELC to interpret and apply the Constitution is limited to constitutional issues arising in disputes within their specialised mandate, unlike the unlimited original jurisdiction of the High Court.

Court orders

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  1. 1.Civil Appeal No. 621 of 2019 together with the cross appeals in support allowed to the extent that the ELRC did not have jurisdiction
  2. 2.The judgment of the ELRC dated 14th December 2019 set aside and substituted with an order dismissing Petition No. 162 of 2019 consolidated with Petition Nos. 344 of 2019 and 346 of 2019
  3. 3.Civil Appeal No. 74 of 2020 and the cross appeals in support dismissed
  4. 4.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

DM
majority
SK
majority
KM
majority
On appeal from
Employment and Labour Relations Court
Petition No. 162 of 2019 (consolidating Petition Nos. 344 of 2019 and 346 of 2019)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over appeals from the Employment and Labour Relations Court (Article 164 of the Constitution), on appeals and cross-appeals from the ELRC judgment
Consolidated with
Civil Appeal No. 74 of 2020

Relief refused

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Determination of the merits of the appeal (competence of the Selection Panel and the vetting of Ms. Mathenge and Ms. Galgalo)

Having found the ELRC lacked jurisdiction, the Court declined to address the merits

p. 12

Costs against the petitioners for abuse of public interest litigation

Two petitioners went to the right court and were transferred by court order; the issues were not frivolous

p. 12

Costs

Each party to bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Our final orders are that Civil Appeal No. 621 of 2019 together with the cross appeals in support are hereby allowed to the extent that the ELRC did not have jurisdiction. The judgment of the ELRC dated 14th December 2019 is set aside and substituted with an order dismissing Petition No. 162 of 2019 consolidated with Petition Nos. 344 of 2019 and 346 of 2019.
p. 12Final orders - appeal allowed on jurisdiction
Civil Appeal No. 74 of 2020 and the cross appeals in support are hereby dismissed. Each party to bear its own costs. It is so ordered.
p. 12Disposition of the cross-appeal and costs
the appointment and removal from ofice of the commissioners of these independent commissions is not a labour and employment issue as the ELRC erroneously held, but a special constitutional innovation, a sui generis devise to address challenging governance needs and gaps.
p. 11Sui generis nature of appointments to independent commissions
We have no doubt in our minds that the ELRC did not have any jurisdiction to entertain the three petitions that led to this appeal.
p. 12Absence of ELRC jurisdiction
A burning and well founded desire to remedy what are perceived to be violations of the Constitution does not justify seeking redress from a forum in which the Constitution has not vested the power to issue a remedy.
p. 12Forum shopping and constitutional fidelity
jurisdiction is such an important matter that it can be raised at any stage of the proceedings and even on appeal.
p. 8Jurisdiction may be raised at any stage
It is limited to constitutional issues that arise in the context of disputes on employment and labour relations or environment and land matters.
p. 12Limited constitutional jurisdiction of specialised courts

Issues in the judgment

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minor

The dateline is internally contradictory, naming both Nairobi and Mombasa

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Attorney General & 2 others v Okoiti & 14 others (Civil Appeal 621 of 2019 & 74 of 2020 (Consolidated)) [2020] KECA 30 (KLR)", Case Analysis (2020). Civil Appeal No. 621 of 2019 (lead file), consolidated with Civil Appeal No. 74 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/30/eng@2020-12-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.