Wilbert Kipsang Choge & 6 others v Communications Authority of Kenya & another [2016] KEELRC 1386 (KLR)
The bottom line
#Kenya's Employment Court said it can hear board-member disputes, but refused to re-hear a matter already decided by the High Court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over board members
The Court has jurisdiction over disputes concerning board membership despite absence of an employer-employee relationship
Article 162(2)(a) and section 12 of the ELRC Act confer jurisdiction over disputes relating to employment and labour relations and connected purposes, not employer-employee disputes only. Boards pass resolutions and formulate policies implemented through employees, so the interaction among Board, company and employees constitutes the complete context of labour relations. The absence of a contract of service does not oust jurisdiction, and vested jurisdiction carries implied power necessary for complete adjudication.
Competence of counsel without current practising certificate
The petition is not incompetent where counsel paid the requisite fees to the Law Society of Kenya and only administrative delay prevented issuance of the physical certificate
Breach of sections 9 and 31 of the Advocates Act occurs only where an advocate has not paid for the current practising certificate. Renewal is effected by payment; the Chief Registrar's issuance of the physical certificate is merely administrative. Judicial notice was taken of delays due to increased numbers of advocates in practice. The objection was therefore overruled.
Effectiveness of withdrawal of appeal
The notice of withdrawal of the appeal was ineffective; the Court of Appeal stay orders remain in force
The notice was filed under rule 68(1) which concerns abatement of criminal appeals; the proper rule is 96. The petitioners were not served and did not consent, so withdrawal required leave. Further, the notice purported to withdraw an application already disposed of and an 'intended appeal', a concept unknown to the Court of Appeal Rules. Accordingly there was no effective withdrawal.
Res judicata / declining jurisdiction
The Court declined jurisdiction because the dispute substantially duplicates the matter decided by Odunga J and subject to a pending appeal
As a court of concurrent jurisdiction with the High Court, this Court cannot relitigate a matter substantially decided by a judge of concurrent jurisdiction. The dispute over continuance in or removal from office is the flipside of Odunga J's declaration that the appointments contravened the Kenya Information and Communication Act, and is the subject of the pending appeal.
Legal principles established
#- The ELRC's jurisdiction is not confined to employer-employee disputes; it extends to employment and labour relations and connected purposes, including disputes involving board members
- Renewal of a practising certificate lies in payment to the Law Society of Kenya; administrative delay by the Chief Registrar in issuing the certificate does not render filings incompetent
- A court of concurrent jurisdiction cannot relitigate a matter substantially decided by a judge of concurrent jurisdiction
- Withdrawal of an appeal without consent of all parties or leave of court is ineffective
Court orders
#- 1.The preliminary objection on competence of counsel (practising certificate) is overruled
- 2.The Court declines jurisdiction to entertain the petition because the dispute is substantially the same as that decided by the High Court (Odunga J) and is subject of an appeal pending in the Court of Appeal
- 3.It is so ordered
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilbert Kipsang Choge & 6 others v Communications Authority of Kenya & another [2016] KEELRC 1386 (KLR)", Case Analysis (2016). Petition (ELRC), Notice of Preliminary Objection dated 18th February 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1386/eng@2016-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.