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ELRCDismissedPetition No 64 of 2015· [2015] KEELRC 370 (KLR)

Bonventure Kioko Mutuku v Attorney General & another [2015] KEELRC 370 (KLR)

Employment and Labour Relations Court
28 September 2015
1,242 words in judgment
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The bottom line

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Kenya's Employment Court confirmed it can hear constitutional challenges to the Employment Act, rejecting attempts to push the case to the High Court.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by M. Mbaru J on 28 September 2015, determines a Notice of Preliminary Objection filed by the 2nd respondent on 21 July 2015 in response to a petition filed on 13 June 2015. The petitioner, a former employee whose contract had expired, sought declarations that sections 41, 42(1) and 45(3) of the Employment Act, 2007 are inconsistent with the Constitution. The 2nd respondent objected that the ELRC lacked jurisdiction under Article 165(3)(d)(i) to declare statutes unconstitutional; that any such question required a three-judge bench under Article 165(4); and that the petition was an abuse of process. The Attorney General supported the referral submission. The petitioner countered that under Article 162(2) the court, having the status of the High Court, could determine constitutional questions arising in employment disputes. The court held that it had jurisdiction: the petition was premised on a terminated employment contract, and the challenged sections concerned employment and labour relations over which the ELRC had exclusive jurisdiction under section 12 of the ELRC Act, the court having equal status with the High Court. On the request for referral to the Chief Justice to empanel three judges, the court found this premature, since the petition was yet to be assessed and a pending Notice of Motion dated 14 July 2015 had first to be heard. The objections were accordingly not upheld; the petitioner was to be heard on the pending application, after which the main petition would proceed. No costs order appears in the ruling.

Key legal issues

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01

Jurisdiction of the ELRC over constitutional challenges to the Employment Act

Holding

The court has jurisdiction because the petition is premised on a contract of employment and the challenged provisions are employment and labour relations matters within its exclusive jurisdiction

Reasoning

Article 165(5)(b) excludes High Court jurisdiction over matters within Article 162(2) courts. The ELRC is a creature of statute but of equal status to the High Court, and section 12 of the ELRC Act confers exclusive jurisdiction over employment and labour relations disputes. Since the petition challenges sections of the Employment Act in the context of a terminated employment contract, the matter is squarely an employment dispute over which the court has jurisdiction.

p. 2
02

Referral to Chief Justice for a three-judge bench under Article 165(4)

Holding

Referral was premature; the petition was yet to be assessed and a pending application had to be determined first

Reasoning

The petitioner came to court under a certificate of urgency with a Notice of Motion, and the petition had not been assessed or analysed. Determining the petition's constitutionality questions before hearing the pending application would be pre-emptive and would deny the petitioner due process of being heard on his application. The question of empanelment could be revisited if the petition, determined on its merits, warranted it.

p. 2
03

Abuse of court process

Holding

The court did not uphold the objection; it found jurisdiction properly applied and directed that the application and petition be heard

Reasoning

Having found jurisdiction on the basis of Article 162(2), the objection that the claim was an abuse of process fell away. The court directed that the petitioner's application dated 14th July 2015 be heard and the main petition addressed thereafter.

p. 3

Legal principles established

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  • The Employment and Labour Relations Court, having equal status with the High Court, has jurisdiction under Article 162(2) and section 12 of the ELRC Act to hear constitutional challenges arising from employment and labour relations disputes

Court orders

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  1. 1.The preliminary objections by the 2nd respondent are dismissed on the question of jurisdiction; the court finds jurisdiction properly applied under Article 162(2)
  2. 2.The Petitioner shall be heard on his application dated 14th July 2015
  3. 3.The issues on the main petition shall be gone into once the pending application is addressed and determined

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a); Article 165(3)(d)(i); Article 165(4); Article 165(5)(b); Article 41
  • Employment Actsections 41, 42(1), 43, 45(3)
  • Employment and Labour Relations Court Actsection 12

Cases cited (8)

  • United States International University (USIU) versus Attorney General
    [2012] eKLR
  • Judicial Service Commission versus Gladys Boss Shollei & Another
    Civil Appeal No. 50 of 2014
  • Prof. Daniel N. Mugendi versus Kenyatta University & Others
    Civil Appeal No. 6 of 2012
  • Owners of Motor Vehicle "Lilian S" versus Caltex Oil (K) Ltd
    [1989] KLR
  • Board of Governors, Moi High School Kabarak versus Malcom Bell & Another
    Supreme Court Petition No. 6 & 7 of 2013
  • Samuel G Momanyi versus AG & Another
    Petition No. 341 of 2011
  • Benjamin Nyambati Odiba versus Egerton University
    Industrial Cause No. 1099 of 2012
  • Republic v Principal Secretary Agriculture, Livestock and 3 others ex-parte Douglas M Barasa & 2 others
    Civil Miscellaneous Application No. 168 of 2015 (JR)
Jurisdiction invoked
Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act (No. 20 of 2011)

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, "Bonventure Kioko Mutuku v Attorney General & another [2015] KEELRC 370 (KLR)", Case Analysis (2015). Petition No 64 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/370/eng@2015-09-28

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