Bonventure Kioko Mutuku v Attorney General & another [2015] KEELRC 370 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over constitutional challenges to the Employment Act
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
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.
Referral to Chief Justice for a three-judge bench under Article 165(4)
Referral was premature; the petition was yet to be assessed and a pending application had to be determined first
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.
Abuse of court process
The court did not uphold the objection; it found jurisdiction properly applied and directed that the application and petition be heard
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.
Legal principles established
#- 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
#- 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.The Petitioner shall be heard on his application dated 14th July 2015
- 3.The issues on the main petition shall be gone into once the pending application is addressed and determined
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.