Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherPetition (ELRC), Notice of Preliminary Objection dated 18th February 2016· [2016] KEELRC 1386 (KLR)

Wilbert Kipsang Choge & 6 others v Communications Authority of Kenya & another [2016] KEELRC 1386 (KLR)

Employment and Labour Relations Court
15 April 2016
3,978 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

#

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

#
The 2nd respondent and an interested party raised preliminary objections to a petition filed in the Employment and Labour Relations Court by persons whose appointment to the Communications Authority Board had been quashed by Odunga J in High Court JR 401 of 2014. The objections contended that the Court lacked jurisdiction over board appointments absent an employer-employee relationship, that the petition was res judicata and an attempt to review a High Court decision, and that the petition was a nullity because counsel, Mr. Aloo, lacked a current practising certificate. The Court framed three issues: the scope of its jurisdiction under Article 162(2)(a) and section 12 of the ELRC Act; the competence of the petition given counsel's practising certificate status; and whether the appeal against Odunga J's decision had been effectively withdrawn. The Court held that its jurisdiction extends to employment and labour relations and connected purposes, and is not confined to employer-employee disputes; boards form part of the broader picture of labour relations. It overruled the objection on competence, holding that renewal of a practising certificate lies in payment to the Law Society of Kenya and administrative delay in issuance does not invalidate filings. It found the notice of withdrawal of the Civil Appeal defective and unconsented, hence ineffective, leaving the Court of Appeal stay orders in force. Consequently, holding itself a court of concurrent jurisdiction with the High Court, it declined to entertain the petition as substantially duplicating the matter decided by Odunga J and pending on appeal. The objections were disposed of accordingly on 15th April 2016.

Key legal issues

#
01

Jurisdiction over board members

Holding

The Court has jurisdiction over disputes concerning board membership despite absence of an employer-employee relationship

Reasoning

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.

p. 6
02

Competence of counsel without current practising certificate

Holding

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

Reasoning

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.

p. 8
03

Effectiveness of withdrawal of appeal

Holding

The notice of withdrawal of the appeal was ineffective; the Court of Appeal stay orders remain in force

Reasoning

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.

p. 7
04

Res judicata / declining jurisdiction

Holding

The Court declined jurisdiction because the dispute substantially duplicates the matter decided by Odunga J and subject to a pending appeal

Reasoning

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.

p. 7

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. 1.The preliminary objection on competence of counsel (practising certificate) is overruled
  2. 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. 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.