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Court of AppealPartially AllowedCivil Appeal E008 of 2020· [2022] KECA 1204 (KLR)

Kenya Ports Authority v Daib & 4 others

Court of Appeal
4 November 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
4,067 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that employment disputes, even when framed as constitutional rights claims, must be filed in the Employment and Labour Relations Court, not the High Court.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (SG Kairu, P Nyamweya & JW Lessit, JJA) allowed KPA's appeal against a High Court ruling (P.J.O. Otieno, J., 27 May 2020) that had dismissed preliminary objections to a constitutional petition by Abdi Mohamed Daib, a former KPA detective whose employment was terminated in 2015 over forged certificates. Daib had already lost before the ELRC (Makau, J., 2016) and before this Court (2018), which upheld the termination. He then filed Constitutional Petition No. 30 of 2019 seeking declarations of rights violations and Kshs. 100,180,840 in accrued benefits. The High Court held it had jurisdiction and that the petition was not res judicata. The Court of Appeal reversed on both grounds. First, applying Article 165(5)(b) and Article 162(2), and the Supreme Court's decision in Karisa Chengo, it held that the core dispute was an employment matter within the ELRC's exclusive jurisdiction, and that the ELRC is competent to determine constitutional claims ancillary to employment; the High Court's supervisory jurisdiction under Article 165(6) does not extend to superior courts. Second, applying the Supreme Court's res judicata framework in Florence Maritime Services and Henderson v Henderson, it held the petition relitigated concluded matters and constituted forum shopping. The Court set aside the ruling in its entirety, upheld the preliminary objections, struck out the petition with costs to KPA and the EACC, and awarded KPA the costs of the appeal. The judgment binds lower courts on the exclusivity of ELRC jurisdiction over employment-based constitutional claims.

Key legal issues

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01

Jurisdiction of the High Court over employment-related constitutional petitions

Holding

The High Court lacks jurisdiction; the ELRC has exclusive jurisdiction over employment disputes including ancillary constitutional claims.

Reasoning

Article 165(5)(b) ousts the High Court's jurisdiction over matters within Article 162(2) courts. Article 165(6) confers supervisory jurisdiction only over subordinate courts, not superior courts. The ELRC can determine constitutional violations arising from employment relationships, so the petition belonged there.

p. 5
02

Res judicata

Holding

The petition was res judicata as the issues were litigated or could have been litigated in the ELRC and this Court.

Reasoning

All four elements of res judicata were met: a final judgment on the merits by a court of competent jurisdiction, with identical parties, subject matter and cause of action. The constitutional dimension was ancillary to the employment dispute and could have been raised before the ELRC under the Henderson v Henderson 'whole case' principle.

p. 7
03

Forum shopping

Holding

Filing a fresh constitutional petition after losing in the ELRC and this Court constituted forum shopping, a practice to be frowned upon.

Reasoning

The Court adopted the Supreme Court's caution in Chaurembo that parties choosing fora at will in disregard of constitutional jurisdictional limits abuse the court process and undermine the judiciary's jurisdictional competence.

p. 7
04

Validity of preliminary objections

Holding

The preliminary objections raised pure points of law and were properly taken as such.

Reasoning

Applying Mukisa Biscuits, questions of jurisdiction and res judicata on the established facts were points of law capable of determination without ascertainment of contested facts.

p. 8

Legal principles established

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  • The High Court has no jurisdiction over employment and labour disputes, including constitutional claims ancillary to an employment relationship, which fall within the exclusive jurisdiction of the ELRC.
  • Courts of equal status can adjudicate constitutional questions arising within their respective areas of jurisdiction.
  • A constitutional petition relitigating matters already determined, or which could have been raised, in prior proceedings is res judicata.
  • The High Court's supervisory jurisdiction under Article 165(6) does not extend to superior courts.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of the High Court delivered on May 27, 2020 set aside in its entirety
  3. 3.Substituted order upholding the preliminary objections
  4. 4.Petition by Abdi Mohamed Daib before the High Court struck out with costs to the appellant and to the 5th respondent
  5. 5.Appellant awarded the costs of this appeal
On appeal from
High Court of Kenya at Mombasa
Constitutional Petition No. 30 of 2019
Jurisdiction invoked
Section 348 of the Criminal Procedure Code as read with Article 163(4)(a) of the Constitution (appeal as of right on a question of law from an acquittal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Ports Authority v Daib & 4 others", Case Analysis (2022). Civil Appeal E008 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1204/eng@2022-11-04

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