Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment· [2015] KEELRC 5 (KLR)

Kenya National Parents Association v Cabinet Secretary, Ministry of Education Science & Technology & another [2015] KEELRC 5 (KLR)

Employment and Labour Relations Court (Industrial Court) of Kenya
16 December 2015
2,656 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed it can hear disputes over hiring and firing of education officials, and rejected attempts to kill the parents' association suit.

What this practically means

#

Executive summary

#
The Respondents raised preliminary objections contending that the Employment and Labour Relations Court lacked jurisdiction over the Claimant's suit, that the Kenya National Parents Association lacked locus standi, and that the suit was an abuse of process. The suit, filed by Memorandum of Motion and Claim with a supporting affidavit of the Claimant's Secretary General Musau Ndunda, sought to prohibit the Respondents from collectively terminating holders of the offices of county directors of education and from recruiting 53 new Deputy Directors of Education. The Respondents argued that recruitment by the 2nd Respondent was an administrative act outside the Court's statutory mandate, that a public interest claim belonged in constitutional proceedings, and that the Claimant, being registered under the Societies Act rather than the Basic Education Act, was non-existent for the purposes of the reliefs sought. The Claimant countered that section 12 of the Employment and Labour Relations Court Act conferred exclusive jurisdiction, that public interest suits are permitted under Article 22 of the Constitution, and that the questions of registration were matters of evidence unsuitable for a preliminary objection. Applying the Mukisa Biscuit principles, the Court held that recruitment and termination disputes fall squarely within its jurisdiction, and that the Claimant's registration status could not be resolved on admitted facts. It held that filing by way of Memorandum of Claim rather than petition was a curable error, not fatal to the suit. The preliminary objections were dismissed, the Claimant was granted leave to amend its pleadings, and the interim orders were extended.

Key legal issues

#
01

Jurisdiction of the ELRC over recruitment and termination of County Directors of Education

Holding

The Court has jurisdiction because the dispute and orders sought relate to employment and labour relations.

Reasoning

Article 165(5)(b) and 162 of the Constitution establish the Court to hear employment and labour relations disputes, given meaning by section 12 of the Employment and Labour Relations Court Act. Questions of legality and disputes arising from administrative disciplinary actions by employers fall within this Court. The dispute concerned collective constructive termination of current Directors of County Education and recruitment of replacements, which are employment matters over which the High Court has been excluded.

p. 3
02

Whether the Claimant has locus standi to sue in the public interest

Holding

The question of the Claimant's registration status is evidential and cannot be determined on a preliminary objection; locus objections fail at this stage.

Reasoning

Article 22(2) of the Constitution permits proceedings to be instituted by a person acting in the public interest or by an association acting in the interest of its members. Whether the Claimant is registered under the Basic Education Act or the Societies Act requires evidence and an enquiry into compliance with Schedule 3 of the Basic Education Act, which cannot be resolved on admitted facts in a preliminary objection.

p. 5
03

Whether filing a Memorandum of Claim instead of a petition for public interest litigation is fatal

Holding

It is not fatal; the pleading may be amended.

Reasoning

The Court found that a claim filed through a Memorandum of Claim while acting in the public interest was procedurally incorrect, since public interest claims under Article 22 should be by petition. However, such an error goes to form and can be corrected without affecting the substantive issues, so dismissal was not warranted.

p. 5

Legal principles established

#
  • A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained or discretion exercised.
  • Recruitment of employees and termination of employment fall within the jurisdiction of the Employment and Labour Relations Court.
  • Filing suit through the wrong procedural vehicle is not fatal to the entire suit and may be cured by amendment.

Court orders

#
  1. 1.The preliminary objections raised by the Respondents fail and are dismissed
  2. 2.The Claimant is at liberty to amend their pleadings as appropriate
  3. 3.Interim orders herein are extended

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 165(5)(b)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Chapter 10
  • Employment and Labour Relations Court Act (Industrial Court Act)Section 12 including 12(3)(i) and section 22
  • Basic Education Act, 2013Section 55 and Schedule 3
  • Societies ActNot specified
  • Civil Procedure ActNot specified
  • Industrial Court (Procedure) RulesRule 4
  • Chief Justice Practice RulesNot specified

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors
    (1969) EA
  • Boniface Waweru Mbivu versus Mary Njeri & Another
  • Okiya Omtatah versus The Attorney General
    Petition No. 354 of 2014
  • Okiya Omtatah & Another versus KEMRI Board of Management & Others
    Petition No. 33 of 2014
Jurisdiction invoked
Article 162(2) of the Constitution read with section 12 of the Employment and Labour Relations Court Act; Article 165(5)(b) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Parents Association v Cabinet Secretary, Ministry of Education Science & Technology & another [2015] KEELRC 5 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/5/eng@2015-12-16

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