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ELRCPartially AllowedPetition No 194 of 2019· [2019] KEELRC 309 (KLR)

Clerk, Nairobi City County Assembly v Speaker Nairobi City County Assembly & another; Orange Democratic Party & 4 others (Interested Parties) [2019] KEELRC 309 (KLR)

Employment and Labour Relations Court
15 November 2019
4,827 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled it can hear county assembly staff employment claims, but political fights over board nominations must go through party channels first.

What this practically means

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Executive summary

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The 2nd Interested Party (Jubilee) filed a Notice of Preliminary Objection dated 1st November 2019 seeking the striking out of the petition on the ground that the dispute fell within section 40 of the Political Parties Act (PPDT jurisdiction), was frivolous, and constituted an abuse of process. The 1st Respondent and the 1st, 4th and 5th Interested Parties supported the objection; the Petitioner and the 3rd Interested Party opposed it. The court held that grounds 2 and 3 of the objection were overtaken by events (the related Motion having been disposed of by consent on 30.10.2019) and ground 4 raised factual issues unfit for a preliminary objection, applying Oraro v Mbaja. The sole surviving issue was jurisdiction. The court found the petition had two aspects. The first, brought by the Petitioner as an employee of the 2nd respondent Board alleging violations of Articles 27, 28, 29, 41, 47 and 236 of the Constitution, fell squarely within the exclusive jurisdiction of the ELRC under Article 162(2)(a), Article 165(5) and section 12 of the ELRC Act; section 40 of the Political Parties Act did not apply, and the objection failed on that limb. Article 22(2) of the Constitution gave the Petitioner standing to sue on behalf of co-employees, defeating the privity argument. The second aspect concerned the nomination of political party representatives to the County Assembly Service Board under section 12(3)(c) of the County Governments Act. Following binding Court of Appeal precedent in Gabriel Bukachi Chapia, the court held such nominations involve political discretion and are non-justiciable in the first instance; it declined to follow Anisminic and struck out the petition in so far as it advanced reliefs for the 3rd Interested Party and Hon. Okumu Elias Otieno, referring the nomination dispute to the political parties' internal mechanisms within 21 days. The preliminary objection succeeded only in part, with no costs on the political dispute.

Key legal issues

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01

Whether section 40 of the Political Parties Act ousts the court's jurisdiction over the petition

Holding

Section 40 of the Political Parties Act does not apply to the employment aspect of the petition; the ELRC, not the PPDT, has jurisdiction over employment disputes

Reasoning

The petition had two aspects. The first was brought by the petitioner as an employee of the 2nd respondent alleging violations of Articles 27, 28, 29, 41, 47 and 236 of the Constitution. Under Article 162(2)(a), Article 165(5) and section 12 of the ELRC Act, this court has exclusive jurisdiction over employment and labour relations disputes, so the PPDT ouster cannot apply to that aspect.

p. 5
02

Whether the dispute over political party nominations to the County Assembly Service Board is justiciable before this court

Holding

The nomination dispute is non-justiciable in the first instance and must be resolved through internal party mechanisms; the court struck out that aspect and referred it to the parties

Reasoning

The dispute over nomination of representatives under section 12(3)(c) of the County Governments Act is akin to a party-list dispute. Binding Court of Appeal precedent requires such disputes to go first to internal party dispute resolution mechanisms and, if unresolved, to the PPDT. The court therefore downed its tools on that aspect and referred the nomination issue to the political parties for internal resolution within 21 days.

p. 7
03

Whether the doctrine of privity of contract bars the petitioner from litigating on behalf of co-employees

Holding

Privity does not bar the petitioner; Article 22(2) of the Constitution gives him standing to sue on behalf of his co-employees

Reasoning

Although privity of contract was not among the grounds in the Notice of Preliminary Objection, the court addressed it. It agreed with the petitioner that Article 22(2) permits proceedings to be instituted by a person acting as a member of, or in the interest of, a group or class of persons, and this constitutional provision displaces the privity objection raised by Jubilee.

p. 5
04

Whether grounds 2, 3 and 4 of the preliminary objection were valid

Holding

Grounds 2 and 3 were overtaken by events and ground 4 raised factual questions unfit for a preliminary objection

Reasoning

Grounds 2 and 3 related to a Notice of Motion already disposed of by consent on 30.10.2019. Ground 4 (abuse of process) required evidence to prove and therefore did not fall within the four walls of a valid preliminary objection, as laid down in Oraro v Mbaja. Only the jurisdictional ground survived for determination.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot rest on facts requiring proof
  • A court's jurisdiction flows only from the Constitution or legislation and cannot be expanded by judicial craft
  • Jurisdiction is everything; a court downs tools the moment it holds it lacks jurisdiction
  • Disputes between political parties or their members must first go through internal party dispute resolution mechanisms before the PPDT
  • Article 22(2) of the Constitution confers locus standi on a person acting in the interest of a group or class of persons

Court orders

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  1. 1.The Preliminary Objection dated 1st November 2019 fails in so far as the petition relates to the employment dispute between the 2nd respondent's employees and their employer
  2. 2.The petition is struck out in so far as it relates to the reliefs sought for and on behalf of the 3rd interested party and Hon. Okumu Elias Otieno, the political party nomination dispute being non-justiciable in the first instance
  3. 3.The issue of party nomination is referred to the respective political parties for resolution using internal dispute resolution mechanisms within 21 days in line with section 4 of the Political Parties Act so that the 2nd respondent board may be fully reconstituted
  4. 4.No costs in respect of the political dispute

Authorities

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Legislation

  • Political Parties Actsection 40(2)
  • Political Parties Actsection 40(1) and (2)
  • Political Parties Actsection 4
  • County Governments Actsection 12(3)(c)
  • County Governments Actsection 12(1)-(5)
  • County Governments Actsection 12 as amended
  • County Assembly Services Actsection 46
  • County Assembly Services Actsection 4(4)
  • County Assembly Services Actsection 11
  • County Assembly Services Actsections 5, 10, 17, 19, 22 and 23
  • County Assembly Services Actsection 48
  • Employment and Labour Relations Court Actsection 12(1)
  • Employment Actsections 3, 5, 9, 45 and 46
  • Constitution of KenyaArticles 22, 27, 28, 29, 41, 47, 159, 162(2)(a), 165(5) and 236

Cases cited (12)

  • Gabriel Bukachi Chapia Vs ODM & Another (2017) eKLR
    (2017) eKLR
  • Jubilee Party of Kenya Vs Patrick Kabundu Mukiri & Another (2017) eKLR
    (2017) eKLR
  • Agricultural Finance Corporation Vs Lengetia Limited & Jack Mwangi (1985) eKLR
    (1985) eKLR
  • John Musakali Vs Speaker of the County of Bungoma & 4 Others (2015) eKLR
    (2015) eKLR
  • Samuel Kamau Macharia Vs Kenya Commercial Bank & 2 Others (2012) eKLR
    (2012) eKLR
  • Mukhisa Biscuits Manufacturing Company limited v West End Distributors Limited [1969] EA 696
    [1969] EA 696
  • Anisminic Limited Vs Foreign Compensation Commission & Another (1969) 2 A.C 147
    (1969) 2 A.C 147
  • Hon. Beatrice Kadeveresia Elachi Vs Nairobi City County Service Board (2018) eKLR
    (2018) eKLR
  • Nyali Vs Attorney General (1956) Vol. 2 2 QB page 1
    (1956) Vol. 2 QB 1
  • Robert Amos Okech Vs Andrew Hamilton & Others (2017) eKLR
    (2017) eKLR
  • Oraro v Mbaja [2005] eKLR
    [2005] eKLR
  • Owners of MV Lilian S v Caltex Oil (Kenya) limited [1989] KLR
    [1989] KLR
Jurisdiction invoked
Article 162(2)(a) and 165(5) of the Constitution; 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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Cite this brief

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Cite this brief

Caselaw, "Clerk, Nairobi City County Assembly v Speaker Nairobi City County Assembly & another; Orange Democratic Party & 4 others (Interested Parties) [2019] KEELRC 309 (KLR)", Case Analysis (2019). Petition No 194 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/309/eng@2019-11-15

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