James Omariba Nyaoga & another v Speaker of the County Assembly Kisii County & 2 others [2015] KEELRC 73 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can hear county assembly employees' petitions challenging dismissals, and rejected four technical objections aimed at striking the case out.
What this practically means
#Executive summary
#Key legal issues
#Court's jurisdiction vis-à-vis section 12 of the Powers and Privileges Act
The ELRC has jurisdiction; legislative privilege does not oust it where employees' constitutional rights are at stake
The petitioners are employees whose claims rest on violations of Articles 41 and 236 among others. Whatever mandate the County Assembly has under the Powers and Privileges Act or County Government Act, conformity to the Constitution regarding employees takes precedence. The Court's power to interrogate unconstitutional action under Article 165(3) cannot be taken away.
Sub judice (section 6 Civil Procedure Act)
Objection fails; the two petitions raise separate causes of action
The Kisumu petition concerns the suspension of 15th May 2015 over a medical scheme dispute, whereas this petition concerns the compulsory leave of 7th August 2015. Though parties are similar, the facts, circumstances and remedies differ, so section 6 does not bar the petition.
Section 77 of the County Government Act
Section 77 does not apply; petitioners need not appeal to the Public Service Commission
The petitioners are full-time employees of the County Assembly Service Board/3rd Respondent, not seconded PSC officers. Requiring an appeal to the PSC under section 77 is a misreading of the law, and there is a fundamental difference between the Clerk's mandate and the County Public Service Board.
Leave under Order 53 for certiorari and mandamus
Leave is unnecessary where remedies are sought by petition under Articles 22 and 23
Article 23(3)(f) permits a court in proceedings under Article 22 to grant an order of judicial review. The ELRC's statutory objectives under section 3(1) require just, expeditious and proportionate resolution, and rules creating procedural clawbacks impeding access to justice must yield to statute and Article 159.
Legal principles established
#- Jurisdiction flows from the Constitution and statute and a court cannot arrogate to itself jurisdiction it does not have
- All employment and labour relations matters, whether commenced by petition, judicial review or claim, lie at the Employment and Labour Relations Court
- A petition under Article 22/23 may include orders of certiorari and mandamus without leave under Order 53
Court orders
#- 1.Preliminary objections dismissed
- 2.Costs shall be in the cause
- 3.Parties shall set the petition for hearing
- Jurisdiction invoked
- Article 162(2) of the Constitution; section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Omariba Nyaoga & another v Speaker of the County Assembly Kisii County & 2 others [2015] KEELRC 73 (KLR)", Case Analysis (2015). Petition dated 12th August 2015 (Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/73/eng@2015-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.