Clerk, Nairobi City County Assembly v Speaker Nairobi City County Assembly & another; Orange Democratic Party & 4 others (Interested Parties) [2019] KEELRC 309 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether section 40 of the Political Parties Act ousts the court's jurisdiction over the petition
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
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.
Whether the dispute over political party nominations to the County Assembly Service Board is justiciable before this court
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
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.
Whether the doctrine of privity of contract bars the petitioner from litigating on behalf of co-employees
Privity does not bar the petitioner; Article 22(2) of the Constitution gives him standing to sue on behalf of his co-employees
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.
Whether grounds 2, 3 and 4 of the preliminary objection were valid
Grounds 2 and 3 were overtaken by events and ground 4 raised factual questions unfit for a preliminary objection
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.
Legal principles established
#- 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
#- 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.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.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.No costs in respect of the political dispute
- Jurisdiction invoked
- Article 162(2)(a) and 165(5) of the Constitution; section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.