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ELRCDismissedNot stated in extract (ELRC Petition; Application dated 29th February 2016)· [2016] KEELRC 1845 (KLR)

Okiya Omtatah Okoiti v President of Kenya & 9 others [2016] KEELRC 1845 (KLR)

Employment and Labour Relations Court
16 June 2016
HWHellen Wasilwa
3,684 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled it can hear constitutional challenges to public board appointments, rejecting arguments that only the High Court handles such cases.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court (Hellen Wasilwa, J) determined a preliminary objection by the 1st to 5th Respondents contesting the Court's jurisdiction over a petition by Okiya Omtatah Okoiti challenging the appointment of the Chairman and three members of the board of the Kenya Trade Network Agency. The Respondents argued that the petition raised purely constitutional questions - the validity of appointments made under the State Corporations Act and the Kenya Trade Network Agency Order 2010 - reserved for the High Court under Article 165(3)(d) of the Constitution, and that no employer-employee relationship existed since board members receive only sitting allowances. The Petitioner countered that the appointments engaged Articles 10, 27, 41, 47, 73 and 232 of the Constitution, and that the ELRC, being a court of the status of the High Court, could interpret the Constitution and enforce rights ancillary and incidental to employment and labour relations within its Section 12 domain. Relying on its earlier decision in Okiya Omtatah v Kenyatta University Council, the Majanja approach in United States International University, and the Court of Appeal's decision in Prof. Daniel N. Mugendi v Kenyatta University, the Court held that the issues arose from an employment relationship and concerned fair labour practices under Article 41. The Court distinguished George Onyango Ochieng v Chemelil Sugar on its facts and dismissed the preliminary objection, directing that the pending application be set down for hearing forthwith.

Key legal issues

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01

Jurisdiction of the ELRC over constitutional challenges to public board appointments

Holding

The Court has jurisdiction because the issues arise from an employment relationship and concern fair labour practices under Article 41

Reasoning

The Court traced its jurisdiction to Article 162(2)(a) and Section 12 of the ELRC Act, and relied on prior decisions including Okiya Omtatah v Kenyatta University Council and Prof. Daniel N. Mugendi v Kenyatta University, holding that a court of the status of the High Court may interpret the Constitution and enforce rights ancillary and incidental to employment matters. It distinguished George Onyango Ochieng v Chemelil Sugar on its facts.

p. 8
02

Validity of the Preliminary Objection

Holding

The Preliminary Objection failed as the matter falls squarely within the Court's jurisdiction

Reasoning

The Respondents argued the petition raised purely constitutional questions reserved for the High Court under Article 165(3)(d). The Court rejected this, holding that jurisdiction to enforce constitutional rights is incidental to its exclusive domain over employment and labour relations, and that the appointment of board members engaged an employment relationship.

p. 8

Legal principles established

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  • The ELRC has jurisdiction to enforce not only Article 41 rights but all fundamental rights ancillary and incidental to employment and labour relations, including interpretation of the Constitution, in matters within its Section 12 domain

Court orders

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  1. 1.The Preliminary Objection dated 4th April 2016 is dismissed for lack of merit
  2. 2.The Application pending hearing be set down for hearing forthwith

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(3), 2(4), 10, 22, 23, 27, 41, 47, 73, 132, 162(2)(a), 165(3)(d), 165(5)(b), 165(6), 232, 234(3)-(4), 258, 259(1)
  • Employment and Labour Relations Court ActSection 12
  • Industrial Court Act, 2011Section 12
  • State Corporations Act (Cap 446)Section 53(1)
  • Kenya Trade Network Agency Order 2010 (Legal Notice No. 6 of 28th January 2011)Paragraphs 6(1)(a), 6(1)(g), 9(1)
  • Employment Act, 2007Section 2
  • Companies Act Cap 486Section 2

Cases cited (10)

  • George Onyango Ochieng vs Chemelil Sugar Company Ltd
    [2014] eKLR
  • Geoffrey Oriaro v Cabinet Secretary Ministry of Labour Social Security and Services & 4 others
    [2015] eKLR
  • David Randu v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Okiya Omtatah Okoiti vs. Kenyatta University Council & 4 Others
    Nairobi ELRC Petition No 89 of 2015
  • Karisa Chengo, Jefferson Kalama, Kengha & Kitiso Charo Ngati v Republic
    (2015) eKLR
  • Nick Githinji Ndichu vs. Clerk Kiambu County Assembly and Another
    (2014) eKLR
  • Evans Kaiga Inyangala & 2 Others vs. County Government of Vihiga & 2 Others
    Cause No. 81/2014
  • United States International University & Eric Rading
    (2012) eKLR
  • Gcaba v. Minister of Safety and Security
  • Prof. Daniel N. Mugendi vs. Kenyatta University & Others
    Civil Appeal No. 6 of 2012
Jurisdiction invoked
Article 162(2)(a) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Okiya Omtatah Okoiti v President of Kenya & 9 others [2016] KEELRC 1845 (KLR)", Case Analysis (2016). Not stated in extract (ELRC Petition; Application dated 29th February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1845/eng@2016-06-16

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