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ELRCOtherPetition dated 12th August 2015 (Kisii)· [2015] KEELRC 73 (KLR)

James Omariba Nyaoga & another v Speaker of the County Assembly Kisii County & 2 others [2015] KEELRC 73 (KLR)

Employment and Labour Relations Court
23 September 2015
3,546 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Kisii County Assembly and another party filed notice of preliminary objections against a petition by the Clerk and Director Finance of the Kisii County Assembly, who challenged a compulsory leave notice issued by the Assembly. The Respondents argued four grounds: ouster of jurisdiction by section 12 of the Powers and Privileges Act given the Assembly's legislative mandate and separation of powers; sub judice given Kisumu Petition No. 12 of 2015 by similar parties; failure to invoke section 77 of the County Government Act; and failure to seek leave for judicial review remedies under Order 53. The court framed four issues and rejected all objections. On jurisdiction, it held that the ELRC's jurisdiction flows from Article 162(2) and section 12 of the Employment and Labour Relations Court Act; the Assembly's legislative privilege cannot shield unconstitutional action against employees, and questions of who may lawfully suspend or send on compulsory leave must be resolved on evidence. On sub judice, the Kisumu petition concerned a May 2015 suspension over a medical scheme, a distinct cause of action from the August 2015 compulsory leave. Section 77 was held inapplicable because the petitioners are full-time employees of the County Assembly, not seconded PSC officers. On leave, a petition under Articles 22 and 23 may include certiorari and mandamus without Order 53 leave, and procedural technicalities cannot impede access to justice. The objections were dismissed with costs in the cause and the petition set down for hearing.

Key legal issues

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01

Court's jurisdiction vis-à-vis section 12 of the Powers and Privileges Act

Holding

The ELRC has jurisdiction; legislative privilege does not oust it where employees' constitutional rights are at stake

Reasoning

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.

p. 4
02

Sub judice (section 6 Civil Procedure Act)

Holding

Objection fails; the two petitions raise separate causes of action

Reasoning

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.

p. 5
03

Section 77 of the County Government Act

Holding

Section 77 does not apply; petitioners need not appeal to the Public Service Commission

Reasoning

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.

p. 5
04

Leave under Order 53 for certiorari and mandamus

Holding

Leave is unnecessary where remedies are sought by petition under Articles 22 and 23

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Preliminary objections dismissed
  2. 2.Costs shall be in the cause
  3. 3.Parties shall set the petition for hearing

Authorities

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Legislation

  • Powers and Privileges Actsection 12
  • County Government Actsections 77, 12, 13
  • Civil Procedure Actsections 6, 12
  • Civil Procedure RulesOrder 53
  • Constitution of Kenya, 2010Articles 2(1), 10(2)(c), 22, 23, 27, 41, 47(1), 50(1), 75(1)(a), 159, 162, 165(3), 185, 236, 258, 259
  • Employment and Labour Relations Court Act (Industrial Court Act)sections 3(1), 4, 12

Cases cited (10)

  • Owners of the Motor Vessel “Lillian S” v. Caltex Oil, (Kenya) Ltd
    [1989] KLR 1
  • Nick Githinji versus the Kiambu County Assembly
    Petition No.11 of 2014
  • Coalition for Reforms and Democracy & Another versus Republic of Kenya & Others
    Petition No.628 and 630 of 2014
  • The Attorney General & Another versus CORD & others
    Court of Appeal (Nbi) No.2 of 2015
  • County Governor of Nyeri & Another versus Cecilia Wangechi Ndungu
    Court of Appeal (Nyeri) No.2 of 2015
  • Mrao Limited versus First National Bank of Kenya & 2 Others
    [2003] KLR
  • Re the Matter of the Interim Independent Electoral Commission
    Constitutional Application No. 2 of 2011; [2011] eKLR
  • Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others
    S.C. Application No. 2 of 2012; [2012] eKLR
  • Central Organisation of Trade Unions Kenya versus The Cabinet Secretary Social Security and Services
    Cause No.2013 of 2014
  • United States International University (USIU) versus Attorney General
    [2013] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution; section 12 of the Employment and Labour Relations Court Act

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, "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.