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ELRCDismissedNot stated in judgment (Industrial Court petition; Kisumu)· [2014] KEELRC 1412 (KLR)

Samuel Angasa Onuko v Speaker County Assembly Kisii County & 4 others [2014] KEELRC 1412 (KLR)

Industrial Court of Kenya
5 November 2014
1,985 words in judgment
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The bottom line

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The Employment and Labour Relations Court ruled that a Kisii MCA's constitutional petition can proceed, rejecting attempts to strike it out on technicality.

What this practically means

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Executive summary

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The respondents raised a preliminary objection dated 15 October 2014 seeking to strike out a constitutional petition filed by a Member of the Kisii County Assembly on four grounds: sub judice given the pending Kisumu Industrial Court Petition No. 243 of 2014; double jeopardy arising from the County Assembly's impeachment proceedings of 17 September 2014; want of locus standi under Section 12 of the Industrial Court Act; and failure to obtain leave under Order 53 of the Civil Procedure Rules as for judicial review. The petitioner opposed, relying on Mukisa Biscuits v Westend Distributors and on Articles 22(1), 258 and 23(3) of the Constitution. Justice Hellen S. Wasilwa dismissed all four grounds. She held that Section 6 of the Civil Procedure Act was not engaged because Petition 243/2014 was brought by a private individual in a different capacity and sought different prayers. She held that County Assembly impeachment proceedings do not exercise judicial authority, so no double jeopardy arises, invoking separation of powers. She found the petitioner had standing personally and as an MCA representing constituents under Articles 22(1) and 258, and that Section 12 of the Industrial Court Act does not limit the court to employer-employee disputes. On leave, she held that a constitutional petition is not a judicial review proceeding and is not governed by Order 53 or the Mutunga Rules, and that Article 159(2)(d) requires justice without undue regard to procedural technicalities. The preliminary objection was dismissed with no costs order recorded, and the petition was directed to proceed on merit.

Key legal issues

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01

Sub judice

Holding

The petition is not sub judice; the parties, capacity and prayers in Petition No. 243/2014 are different

Reasoning

Section 6 requires the same matter in issue between the same parties litigating under the same title. Petition 243/2014 was filed by a private individual, not a Member of County Assembly, and sought different prayers. The present petitioner sues in his capacity as an MCA performing oversight, so the requirements of Section 6 are not met.

p. 3
02

Double jeopardy / County Assembly impeachment

Holding

Impeachment proceedings in the County Assembly are not judicial proceedings and cannot bar a constitutional petition

Reasoning

Article 159(1) vests judicial authority in courts and tribunals. County Assemblies, though possessing powers akin to the High Court for enforcement of attendance under Article 195, do not exercise judicial authority. Separation of powers means the Assembly cannot be the High Court and vice versa; hearing the petition is not double jeopardy.

p. 3
03

Locus standi

Holding

The petitioner, an elected MCA acting in his own interest and for his constituents, has standing under Articles 22(1) and 258

Reasoning

Article 22(1) and Article 258 confer capacity on every person, including persons acting in their own interest, as members of a group, or in the public interest. The petitioner acts personally and as MCA representing constituents. Section 12 of the Industrial Court Act does not confine the court to employer-employee disputes.

p. 3
04

Leave under Order 53

Holding

Leave is unnecessary; the petition is brought under Articles 22, 23 and 165 and not under Order 53

Reasoning

The petition invokes Article 23(3) of the Constitution, not Order 53. The Mutunga Rules contain no requirement of leave for constitutional petitions. Judicial review differs from a constitutional petition, which involves wider constitutional interpretation, and Article 159(2)(d) requires justice without undue regard to procedural technicalities.

p. 4

Legal principles established

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  • Sub judice under Section 6 of the Civil Procedure Act arises only where the matter in issue is directly and substantially the same in a previously instituted suit between the same parties litigating under the same title
  • Impeachment proceedings before a County Assembly are not judicial proceedings and do not raise double jeopardy in respect of court proceedings
  • Every person has standing to institute constitutional proceedings under Articles 22(1) and 258 of the Constitution, including acting in the public interest or on behalf of a group
  • No leave of court is required under Order 53 of the Civil Procedure Rules before instituting a constitutional petition, which is not a judicial review proceeding

Court orders

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  1. 1.Preliminary objection dated 15.10.2014 dismissed in its entirety
  2. 2.Petition to proceed on merit

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Industrial Court ActSection 12
  • Civil Procedure RulesOrder 53
  • Constitution of Kenya, 2010Articles 10, 22(1), 22(3), 23, 23(3), 159(1), 159(2)(d), 165, 195, 196, 258
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Legal Notice No. 117 of 28th June 2013

Cases cited (3)

  • Mukisa Biscuits vs Westend Distributors Ltd
    (1969) E.A 696
  • Benson Riitho Mureithi vs Water & Natural Resources
  • Northen Nomadic Disabled Persons Organization vs County Government of Garissa & Another
    Petition No. 4 of 2013
Jurisdiction invoked
Articles 22, 23, 162(2) and Industrial Court Act s.12

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Samuel Angasa Onuko v Speaker County Assembly Kisii County & 4 others [2014] KEELRC 1412 (KLR)", Case Analysis (2014). Not stated in judgment (Industrial Court petition; Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1412/eng@2014-11-05

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