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ELRCStruck OutPetition (Nakuru ELRC) — Mary Kenyaman Ekai-related petition filed 1st November 2017 (number not stated in judgment)· [2018] KEELRC 86 (KLR)

Emmanuel Ngimero & 2 others v Governor, Samburu County Government & another [2018] KEELRC 86 (KLR)

Employment and Labour Relations Court
15 November 2018
MMM. Mbaru
1,738 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 struck out a petition challenging a county nominee, ruling that disputes over county executive appointments belong in the High Court.

What this practically means

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Executive summary

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The Speaker of the Samburu County Assembly filed a preliminary objection seeking the striking out of a petition in which the petitioners, representatives of the Turkana community, challenged the rejection of Mary Kanyaman Ekai's nomination as a Samburu County Executive Committee member as discriminatory. The 2nd respondent argued the ELRC lacked jurisdiction since Ekai was not an employee of the County Government (relying on Article 198 of the Constitution), that substantially similar suits were pending before the High Court (Petition No.6 of 2017 and JR No.8 of 2017), and that the petition was an abuse of process. The petitioners countered that the objections raised factual, not purely legal, matters. The court identified the single decisive issue as jurisdiction. Applying Owners of the Motor Vessel 'Lillian S', it held jurisdiction under Article 162(2) and section 12 of the ELRC Act extends to employment and labour relations and connected purposes, but found no such nexus: disputes over nomination, vetting and composition of county executive bodies fall to the High Court under Article 186 and the County Government Act. The court further noted Ekai's own substantially similar petition had already resulted in a judgment at Nanyuki, and continuing this petition risked conflicting findings. It therefore struck out the petition for want of jurisdiction and awarded costs to the 2nd respondent.

Key legal issues

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01

Jurisdiction of the ELRC over the petition

Holding

The ELRC lacks jurisdiction because there is no existing employment or labour relations between Ekai and the County Government; the subject is nomination and vetting of a county executive member, a matter for the High Court.

Reasoning

Article 162(2) and section 12 of the ELRC Act confer jurisdiction only over employment and labour relations and connected purposes. The court read connected purposes expansively per Rift Valley Railways and COTU cases, but found none here: before nomination, vetting and approval, no employment relationship exists. Article 198 and Article 179(7) operate as matters of law on transition. Appointment and composition of county executive bodies are allocated to the High Court under Article 186 and the County Government Act, 2012.

p. 3
02

Multiplicity of suits / abuse of process

Holding

Maintaining the petition would lead to conflicting findings with substantially similar proceedings (Petition No.25/6 of 2017 and JR No.8 of 2017) already before the High Court, in which judgment had been delivered.

Reasoning

The court noted Ekai's own petition filed on 30 October 2017 raising substantially similar orders, and this petition filed on 1 November 2017. Judgment in Nanyuki Petition No.6 of 2017 had been delivered on 19 July 2018. Continuing would mar the essence of matters between the parties and risk conflicting decisions by two courts over the same respondents and cause of action.

p. 3

Legal principles established

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  • A court must determine jurisdiction at the earliest opportunity and down tools once it finds it lacks jurisdiction
  • Disputes over nomination, vetting and appointment to the county executive, where no employment or labour relations nexus exists, fall to the High Court under Article 186 and the County Government Act

Court orders

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  1. 1.The petition is dismissed/struck out for want of jurisdiction
  2. 2.Costs to the 2nd respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 198
  • Constitution of Kenya, 2010Article 186
  • Constitution of Kenya, 2010Article 179(7)
  • Employment and Labour Relations Court Actsection 12 and Preamble
  • County Government Act2012 (Act generally)
  • Public Appointments (County Assemblies Approval) Act2017

Cases cited (6)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Rift Valley Railways Workers Union (K) versus Kenya Railways Staff Retirement Benefits Scheme & another
    [2017] eKLR
  • Central Organisation of Trade Unions (K) & 2 others versus Cabinet Secretary Ministry of Labour National Social Security and Services
    [2014] eKLR
  • Mary Kanyaman Ekai versus County Assembly of Samburu & another (formally Nyahururu High Court Petition No. 25 of 2017)
    [2018] eKLR
  • Mary Kenyaman Ekai v The County Government of Samburu & another (Nakuru High Court Constitutional Petition No.6 of 2017)
  • Mary Kenyaman Ekai (Ex Parte Applicant) v The County Assembly of Samburu (Nakuru High Court JR No.8 of 2017)
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 read together with section 12 of the Employment and Labour Relations Court Act, 2011

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, "Emmanuel Ngimero & 2 others v Governor, Samburu County Government & another [2018] KEELRC 86 (KLR)", Case Analysis (2018). Petition (Nakuru ELRC) — Mary Kenyaman Ekai-related petition filed 1st November 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/86/eng@2018-11-15

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