Eric Cheruiyot v Independent Electoral And Boundaries Commission & 3 others [2017] KEELRC 1791 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court confirmed it can hear a voter's challenge to election resignation rules, dismissing arguments that only the High Court or employers could raise them.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction to determine the constitutionality of sections 43(5) and (6) of the Elections Act
The preliminary objection is dismissed; the ELRC has jurisdiction because the impugned provisions concern resignation from public office, which is an employment matter, and the High Court's jurisdiction is ousted by Article 165(5)(b)
The court read Articles 162(2)(a), 162(3), 165(3) and 165(5)(b) together with section 12 of the Employment and Labour Relations Court Act as delineating the respective jurisdictions of the ELRC and the High Court. Since resignation from employment by public servants is tantamount to voluntary termination of employment, the dispute falls within the ELRC's exclusive domain. Articles 22 and 23 further permit public interest litigation before the court. Courts of equal status stand at parity with the High Court.
Whether the prior High Court decisions (Charles Omanga, Evans Gor Semelang'o, Union of Civil Servants) render this a re-litigation
No; those matters were heard and determined by the High Court without due regard to its jurisdiction, so re-litigation does not arise
The respondents argued the identical constitutionality question had already been decided by the High Court in three petitions. The court held that since the ELRC, not the High Court, is the competent forum, the earlier decisions were made by a court without due regard to its jurisdiction on the point, and the issue of re-litigation does not arise.
Legal principles established
#- Matters reserved for the Employment and Labour Relations Court are ousted from the jurisdiction of the High Court by Article 165(5)(b); a challenge to provisions requiring public officers to resign from employment is an employment matter within the ELRC's jurisdiction
- Courts of equal status operate at parity with the High Court, subject only to their delineated jurisdictions
Court orders
#- 1.The preliminary objection by the 2nd – 4th respondents dated 27th January, 2017 is dismissed
- 2.Each party bears their own costs of the application
- 3.The court retains jurisdiction to hear and determine the petition
- Jurisdiction invoked
- Articles 162(2)(a), 162(3), 165(3), 165(5)(b), 22 and 23 of the Constitution of Kenya, 2010 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, "Eric Cheruiyot v Independent Electoral And Boundaries Commission & 3 others [2017] KEELRC 1791 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1791/eng@2017-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.