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ELRCOtherPetition dated 8th April 2016 (Employment and Labour Relations Court)· [2016] KEELRC 434 (KLR)

CFC Stanbic Bank Limited (formerly Stanbic Bank of Kenya Limited) v Mutia Muindu t/a Mutibra Auctioneers & 2 others [2016] KEELRC 434 (KLR)

Employment and Labour Relations Court
23 September 2016
4,055 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court confirmed it can hear employment disputes anywhere in the country and allowed the Bank's property-rights petition to proceed.

What this practically means

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Executive summary

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This is a ruling on preliminary objections in a constitutional petition filed by Consolidated Bank of Kenya Limited at the Employment and Labour Relations Court in Nairobi on 8th April 2016. The Bank, a garnishee that was never party to the underlying employment suit in which Maurice M. Muyeo and 148 others obtained a decree of over Ksh. 201 million against the Registered Trustees of the Kenya Ports Authority Pensions Scheme, sought to restrain the auctioneers and the decree-holders from executing a warrant of sale and proclamation against the Bank's property in purported realization of costs, alleging violation of its constitutional right to property under Article 40. The respondents raised preliminary objections asserting lack of territorial jurisdiction, res judicata and sub judice, non-disclosure of material facts, absence of constitutional issues, and lack of authority for the verifying affidavit. Interim injunction orders had earlier been granted by Aboudha J. on 8th April 2016. Principal Judge Mathews Nderi Nduma framed four issues and dismissed all the objections. He held that the ELRC has territorial jurisdiction throughout Kenya over matters under section 12 of the Employment and Labour Relations Act, noting the Mombasa judges' prior recusal; that the res judicata requirements were not met; that the Article 40 violation was sufficiently pleaded per Anarita Karimi Njeru; and that sufficient authority was disclosed, with no verifying affidavit required in a constitutional petition. All preliminary objections were dismissed with costs, and the petition was left to proceed to full hearing.

Key legal issues

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01

Territorial jurisdiction of the ELRC

Holding

The objection was dismissed; the ELRC has nationwide territorial jurisdiction over matters under section 12 of the ELRC Act.

Reasoning

The court accepted that the Employment and Labour Relations Court, wherever situated, may adjudicate any matter within its statutory jurisdiction, with no territorial demarcation. Additionally, the two judges sitting in Mombasa had recused themselves in ELRC No. 116 of 2013 (now 1262 of 2015), so the matter was transferred to Nairobi, and the petition emanating from that suit was properly filed in Nairobi.

p. 8
02

Res judicata and sub judice

Holding

The objection failed because none of the five requirements for res judicata was established.

Reasoning

Applying the Kenya Hotel Properties test, the court was satisfied that the five requirements - same matter in issue, same parties or privies, same title, competent court, and final decision on the merits - had not been met. The subject matter of the petition had not previously been litigated on its merits, so the petition was neither res judicata nor sub judice.

p. 8
03

Sufficiency of constitutional pleading under Anarita Karimi Njeru

Holding

The petition sufficiently pleads the violation of the Bank's right to property under Article 40.

Reasoning

The respondents argued the petition raised no constitutional issue and failed the Anarita Karimi Njeru specificity standard. The court held the alleged violation of the Bank's Article 40 right to property was clearly set out in the petition and application, satisfying the requirement to cite the constitutional provision, the manner of violation and the remedy sought.

p. 8
04

Authority to execute the verifying affidavit

Holding

Sufficient authority was disclosed by the Head of Legal Services, and no verifying affidavit is required in a constitutional petition in any event.

Reasoning

The court found the Head, Legal Services disclosed his authority to bring the petition and application on behalf of the Bank. Further, agreeing with the petitioner, the court held that the Mutunga Rules do not obligate a petitioner to file a supporting or verifying affidavit, such a requirement applying only to suits commenced by plaint and interlocutory applications.

p. 8

Legal principles established

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  • The Employment and Labour Relations Court anywhere in Kenya has territorial jurisdiction over any matter within section 12 of the Employment and Labour Relations Act; no territorial demarcation exists.
  • There is no requirement for a supporting or verifying affidavit in a constitutional petition, unlike a civil suit commenced by plaint.

Court orders

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  1. 1.Dismissal of the objection on territorial jurisdiction
  2. 2.Dismissal of the objection on res judicata/res sub judice
  3. 3.Dismissal of the objection that the petition lacks material averments
  4. 4.Dismissal of the objection on authority to execute the verifying affidavit
  5. 5.All preliminary objections dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)sections 7, 11-18
  • Civil Procedure Rules 2010Order VII rule 9; Order 4 rule 1(4)
  • Employment and Labour Relations Court (Procedure) Rules 2010Rule 8(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules)Rules 10 and 11; Rule 10(2)(e)
  • Auctioneers RulesRule 55(5); Rule 7 (Auctioneers Rules 1997)
  • Employment and Labour Relations Act 2011section 12 (as amended by Misc. Amendment No. 18 of 2014)
  • Employment and Labour Relations Court Act, No. 18 of 2014section 20
  • Constitution of Kenya, 2010Article 40; Article 159(2)(d)

Cases cited (12)

  • Joel Titus Muasya T/A Makuni Enterprises v Southern Credit Trading Corporation
    Misc. Civil Application No. 544 of 2014
  • Albert Chaurembo and 7 others v Maurice Munyao and 148 others
    Civil Application Number 31 of 2014, Malindi
  • R v Kesington included Tax Commissioner ex parte Princess Edmond De Polignac
    [1971] KB 486 of 509
  • Stephen Nyaragi Onsuna & Another v George Magole & 7 others
    (2014) eKLR
  • Anarita Karimi Njeru v Republic (No. 1)
    [1979] KLR 154
  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
  • Kenya Hotel Properties Limited v Willisden Investments Limited and 8 Others
    C.A. No. 24 of 2014
  • Galaxy Auctioneer v E. N. Nganga & Company Advocates and another
    (2004) eKLR
  • Barclays Bank of Kenya Limited v Kepha Nyabera & 191 others and Another
    [2013] eKLR
  • Mary Wambui Munene v Peter Gichuki Kingara & 2 others
    [2014] eKLR
  • Macfoy v United Africa Co Ltd
    [1961] 3 All E.R.
  • Mutia Muindi T/A Mutibira Auctioneers v (1) CFC Stanbic Bank Ltd (2) Maurice Munyao & 148 others
    ELRC Misc. App No. 2 of 2015, Mombasa
Jurisdiction invoked
Employment and Labour Relations Act, section 12 (as amended) - constitutional petition under Article 40 of the Constitution

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, "CFC Stanbic Bank Limited (formerly Stanbic Bank of Kenya Limited) v Mutia Muindu t/a Mutibra Auctioneers & 2 others [2016] KEELRC 434 (KLR)", Case Analysis (2016). Petition dated 8th April 2016 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/434/eng@2016-09-23

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