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ELRCOtherPetition dated 21st January 2015· [2015] KEELRC 964 (KLR)

Silas O. Masawa v Anne Mikoyo & 7 others [2015] KEELRC 964 (KLR)

Industrial Court (Employment and Labour Relations Court)
19 March 2015
MOMAUREEN ONYANGO
3,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court ruled it had no power to hear a CDF committee chairman's petition because committee members are not employees, transferring the case to the High Court.

What this practically means

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Executive summary

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The petitioner, Silas Owiti Masawa, filed a petition on 21st January 2015 seeking declarations that he was the duly appointed and gazetted Chairman of the Awendo Constituency Development Fund Committee, that the respondents' actions constituted unfair labour practices and gross abuse of office, and permanent injunctions restraining the respondents from interfering with his duties or appointing another chairman. He also filed a notice of motion seeking interim and conservatory orders. The respondents and the interested party, the Constituency Development Fund Board, filed a preliminary objection dated 9th February 2015 on three grounds: lack of jurisdiction under Article 162 of the Constitution, ouster by Section 49 of the Constituencies Development Fund Act 2013, and non-compliance with the Employment Act and the Industrial Court Act. Mr. Otieno for the respondents submitted there was no employer-employee relationship between the petitioner and the respondents or the Board, since Committee members are volunteers paid only sitting allowances. Mr. Mboya and Mr. Oguttu for the petitioner countered that receipt of allowances from the interested party established a labour relations dispute and that Section 49 could not oust the court's constitutional mandate. The court, Maureen Onyango J, held that under Section 24 of the CDF Act only staff employed under Section 24(17) are employees of the Committee; the chairman and members are elected, gazetted, unpaid, and receive only sitting allowances. There was therefore no employment relationship, the petition was not an employment or labour relations dispute, and the court lacked jurisdiction. Declining to consider the remaining grounds, the court transferred the petition to the High Court at Migori.

Key legal issues

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01

Whether the Industrial Court had jurisdiction over a dispute involving a gazetted CDF Committee chairman

Holding

The court had no jurisdiction as there was no employment relationship between the petitioner and the respondents or interested party

Reasoning

The petitioner was gazetted as chairman under Section 24 of the Constituencies Development Fund Act after election by registered voters and appointment by the MP. Committee members earn only sitting allowances, have no terms of employment, and are not paid wages or salary. Only staff employed under Section 24(17) are employees of the Committee, so the dispute is not an employment or labour relations dispute within Article 162(2) and Section 12 of the Industrial Court Act.

p. 7
02

Whether the court could determine the remaining grounds of the preliminary objection

Holding

Having found no jurisdiction, the court declined to consider the other grounds of objection

Reasoning

Once the jurisdictional defect was established, the court could not proceed to determine the other objections, including the alleged ouster under Section 49 of the CDF Act, since without jurisdiction a court cannot entertain any matter.

p. 7

Legal principles established

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  • Jurisdiction must be determined before any other issue in a case
  • Members of a Constituency Development Fund Committee, including the chairman, are not employees of the Committee as only staff employed under Section 24(17) are employees

Court orders

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  1. 1.The petition is transferred to the High Court at Migori for hearing and determination

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2), Article 165(3)(b) and (d)(ii), Article 159(1), Articles 41(1) and 47(2)
  • Constituencies Development Fund Act, 2013Sections 24, 24(14), 24(17), 45, 49
  • Industrial Court ActSection 12
  • Employment Act, 2007Section 2
  • Arbitration ActSection 6(1)

Cases cited (1)

  • Nick Githinji Ndichu v Clerk, Kiambu County Assembly & Another
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Industrial 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, "Silas O. Masawa v Anne Mikoyo & 7 others [2015] KEELRC 964 (KLR)", Case Analysis (2015). Petition dated 21st January 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/964/eng@2015-03-19

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