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Court of AppealPartially AllowedCivil Appeal No. E136 of 2022 (lead file)· [2023] KECA 427 (KLR)

The Clerk, Nakuru County Assembly & 2 others v Kenneth Odongo & 3 others

Court of Appeal
14 April 2023
FSF. SichaleFOF. OchiengLAL. Achode
8,359 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that the Employment and Labour Relations Court cannot hear challenges to county chief officer nominations unless there is an actual employment dispute.

What this practically means

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Executive summary

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This consolidated appeal (E136 of 2022 as lead file, with E137 of 2022) arose from a ruling of Nderitu, J. of the Employment & Labour Relations Court in Nakuru dismissing a preliminary objection challenging the court's jurisdiction over petitions filed by Kenneth Odongo and Stephen Michael Odour Ogutu. The petitions sought declarations that the nomination of interested parties as Nakuru County chief officers was unconstitutional, irregular and illegal. The Court of Appeal (Sichale, Ochieng and Achode, JJ.A) allowed the appeal on three grounds. First, it held that the E&LRC lacked jurisdiction under Article 162(2) of the Constitution and Section 12 of the E&LRC Act because there was no employer-employee relationship or labour dispute; the nomination process had been halted before vetting and no contracts existed. The words 'including' in Section 12 and the preamble's 'for connected purposes' could not be used to arrogate jurisdiction. Second, the 1st respondent lacked locus standi before the E&LRC, not being among the persons in Section 12(2) of the Act, and any Bill of Rights claim lay in the High Court under Articles 22 and 23. Third, the 1st respondent was required to exhaust the mandatory appeal procedure under Part XV of the Public Service Commission Act (Section 87(2)) before resorting to court. The Court set aside the entire ruling, struck out the petition with costs against the 1st respondent, upheld the preliminary objection, and applied the orders mutatis mutandis to Civil Appeal No. E137 of 2022.

Key legal issues

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01

Jurisdiction of the E&LRC over the nomination of county chief officers

Holding

The E&LRC lacked jurisdiction because there was no employer-employee relationship or labour dispute; the nomination process had not ripened into employment

Reasoning

The Court relied on Article 162(2) of the Constitution and Section 12(1) of the E&LRC Act, which confine the court's jurisdiction to employment and labour relations disputes. The 1st respondent was neither an employee nor a shortlisted applicant, and the interested parties had no contracts of service. The 'including' in Section 12 and the preamble words 'for connected purposes' cannot expand jurisdiction. Jurisdiction flows from the Constitution or statute and cannot be arrogated.

p. 7
02

Locus standi of the 1st respondent

Holding

Having found no employer-employee dispute, the 1st respondent had no locus standi before the E&LRC and was not among the persons listed in Section 12(2) of the E&LRC Act

Reasoning

The Court held that Articles 22 and 258 of the Constitution confer standing to enforce constitutional rights, but Article 23 read with Article 165 gives exclusive original jurisdiction over Bill of Rights enforcement to the High Court. The E&LRC's jurisdiction to interpret the Constitution is limited to issues arising from employment and labour relations disputes. Any Bill of Rights claim by the 1st respondent should have been brought in the High Court.

p. 13
03

Exhaustion of administrative remedies

Holding

The 1st respondent was required to exhaust the appeal procedure under Part XV of the Public Service Commission Act before approaching the E&LRC

Reasoning

Section 87(2) of the Public Service Commission Act is couched in mandatory terms and ousts court jurisdiction in the first instance for matters within the Commission's appellate jurisdiction over county government public service. The Governor's nomination under Section 45 of the County Governments Act cannot be viewed in isolation from the County Public Service Board's competitive sourcing and recommendation. The petition was premature and a non-starter.

p. 15

Legal principles established

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  • Jurisdiction of a specialized court is limited to matters provided for in its constituting statute and cannot be expanded by the preamble or the words 'including' or 'for connected purposes'
  • Specialized courts under Article 162(2) may interpret the Constitution only on issues arising within their specialized subject matter
  • Where a statute (Section 87(2) of the Public Service Commission Act) mandates exhaustion of internal appeal procedures, courts are barred from hearing proceedings filed in the first instance without such exhaustion
  • A decision made by a court without jurisdiction is a nullity and the court must down its tools immediately

Court orders

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  1. 1.The appeal is allowed
  2. 2.The entire ruling of Nderitu, J. dated 29th November 2022 and all consequential orders are set aside
  3. 3.The petition dated 11th November 2022 is struck out with costs
  4. 4.The appellants' notice of preliminary objection dated 16th November 2022 is upheld
  5. 5.Costs of the appeal are awarded against the 1st respondent
  6. 6.The orders apply mutatis mutandis to Civil Appeal No. E137 of 2022
On appeal from
Employment & Labour Relations Court, Nakuru
Petitions filed 10th and 11th November 2022
Jurisdiction invoked
Section 37(1) of the Employment and Labour Relations Court Act / appellate jurisdiction of the Court of Appeal over decisions of the E&LRC; Article 164 Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "The Clerk, Nakuru County Assembly & 2 others v Kenneth Odongo & 3 others", Case Analysis (2023). Civil Appeal No. E136 of 2022 (lead file). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/427/eng@2023-04-14

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