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ELRCDismissedPetition No 15 of 2015· [2015] KEELRC 471 (KLR)

George Maina Kamau v County Assembly of Murang’a & 2others [2015] KEELRC 471 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
9 October 2015
BOByram Ongaya
2,826 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

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Kenya's Employment Court confirmed workers can enforce constitutional rights through a petition, not just standard employment claims.

What this practically means

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Executive summary

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The petitioner filed a constitutional petition on 21.09.2015 invoking various Articles of the Constitution, together with a notice of motion under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The 1st and 2nd respondents filed a preliminary objection dated 28.09.2015 raising six grounds, of which the parties agreed to argue only the two jurisdictional grounds: that the petition should have been brought as a statement of claim under rule 4 of the Industrial Court (Procedure) Rules, 2010, and that only the High Court could enforce fundamental rights. The court framed two issues: whether the petitioner was entitled to file a petition under the 2013 Rules, and whether the Industrial Court had jurisdiction to entertain a petition enforcing fundamental rights in an employment dispute. On the first issue, the court held that 'High Court' in the 2013 Rules includes courts with the status of the High Court under Article 162(2), and that requiring a statement of claim would introduce procedural bars to access to justice. On the second, applying Article 165(5) read with Article 162(2)(a), and following the Court of Appeal in Mugendi, Shollei and Karisa Chengo together with its own precedents, the court held that its jurisdiction is essentially that of the High Court within employment and labour relations, including enforcement of fundamental rights ancillary to such matters. The preliminary objection was dismissed with costs and directions were reserved for the hearing of the petition.

Key legal issues

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01

Whether the petitioner could file a constitutional petition instead of a statement of claim

Holding

The petitioner was entitled to file a petition and application; 'High Court' in the Practice and Procedure Rules 2013 includes courts with the status of a High Court under Article 162(2), and imposing a statement of claim would introduce procedural bars to access to justice.

Reasoning

The court read 'High Court' in the 2013 Rules as including courts of equal status under Article 162(2). It emphasised the liberal access-to-justice scheme of Articles 22, 23 and 258 and the injunction against undue regard to procedural technicalities under Article 159. Adopting the respondents' submission would resurrect procedural barriers between ordinary actions, judicial review and petitions that the 2010 Constitution collapsed. Hence the petition procedure was properly invoked and no statement of claim was required.

p. 2
02

Whether the ELRC has jurisdiction to enforce fundamental rights in employment disputes

Holding

The court has jurisdiction to hear the petition, as the matter arises from the petitioner's employment relationship with the respondents, following Mugendi, JSC v Gladys Boss Shollei, Karisa Chengo and the court's own precedents.

Reasoning

Article 165(5) bars the High Court from matters reserved to courts under Article 162(2); the ELRC therefore exercises High Court-type jurisdiction within employment and labour relations, including enforcement of fundamental rights and constitutional provisions ancillary to such matters. The Court of Appeal in Mugendi and Shollei, and Karisa Chengo on equal status of the three courts, support this. Since the dispute plainly arose from employment, jurisdiction was established.

p. 3

Legal principles established

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  • The ELRC, being a court with the status of the High Court under Article 162(2)(a) read with Article 165(5) of the Constitution, has jurisdiction to entertain petitions enforcing fundamental rights and freedoms under Articles 22 and 23 and the Constitution under Article 258 where the dispute relates to employment and labour relations.
  • A litigant before the ELRC may invoke the constitutional petition procedure and need not file a statement of claim under the Industrial Court (Procedure) Rules; the test is the subject matter of the dispute, not the remedy sought or the procedure used.

Court orders

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  1. 1.The preliminary objection dated 28.09.2015 as urged for the 1st and 2nd respondents is dismissed with costs
  2. 2.Parties are invited to take further directions on the further steps towards hearing and determination of the notice of motion and the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 22, 23, 24, 258, 159, 162(2)(a), 165, 165(3), 165(5), 174, 179, 185, 191, 224, 226, 236, 144
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3, 4, 13, 19 and 23
  • Industrial Court (Procedure) Rules, 2010Rule 4
  • Civil Procedure Rules, 2010Order 51(4)
  • County Government ActSection 40
  • Employment and Labour Relations Court ActSections 12(1) and (2)
  • Employment and Labour Relations Act, 2011Not specified
  • Murang'a County Assembly Standing OrdersStanding Order No. 66

Cases cited (11)

  • Peter Muchai Muhura –Versus- Teachers Service Commission
    [2015]eKLR
  • Professor Elijah Biama –Versus- University of Eldoret and 2 Others
    [2014]eKLR
  • Prof. Daniel N. Mugendi –Versus- Kenyatta University and 3 Others
    Civil Appeal No. 6 of 2012
  • United States International University (USIU) –Versus- The Attorney General & Others
    Petition No. 170 of 2012
  • Geoffrey Makana Asanyo –Versus- Nakuru Water and Sanitation Services Company and 6 Others
    [2014]eKLR
  • Judicial Service Commission –Versus- Gladys Boss Shollei & Another
    [2014]eKLR
  • Margaret Lorna Kariuki –Versus- Embu County Government
    [2015]eKLR
  • Karisa Chengo and 2 Others –Versus- Republic
    [2015]eKLR
  • Grace Gacheri Muriithi –Versus- Kenya Literature Bureau
    [2012]eKLR, Industrial Court Cause No. 44 of 2011
  • Abdikadir Suleiman –Versus- County Government of Isiolo and Another
    [2015]eKLR
  • Harrikson –Versus- Attorney General of Trinidad and Tobacco
    (1980) AC 265
Jurisdiction invoked
Articles 22, 23, 258, 162(2)(a) and 165(5) of the Constitution; Employment and Labour Relations Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Maina Kamau v County Assembly of Murang’a & 2others [2015] KEELRC 471 (KLR)", Case Analysis (2015). Petition No 15 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/471/eng@2015-10-09

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