Michael Murji Mathenge & 28 others v Attorney General & 2 others [2019] KEELRC 895 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can hear constitutional rights claims arising from employment and refused to strike out a petition re-arguing settled issues.
What this practically means
#Executive summary
#Key legal issues
#Whether the motion dated 23.11.2018 is res judicata
The application is res judicata to the extent that it re-litigates the delay and competence issues already determined in Ndolo J's ruling of 9 January 2018 dismissing the preliminary objection; those issues must await trial.
The Respondents had earlier filed a Notice of Preliminary Objection dated 24.5.2017 raising inordinate delay and the competence of the Petition. Ndolo J dismissed that objection by ruling delivered on 9th January 2018, holding that the question of delay should be determined after hearing the Petition on merit. The instant motion raised the same grounds except jurisdiction, so it is barred as res judicata and the issues await trial.
Whether the Court has jurisdiction over the Petition
The Court has jurisdiction because the alleged constitutional infringements occurred in the course of the Petitioners' employment with the Kenya Defence Forces.
Article 162(2)(a) establishes the Court for employment and labour disputes; section 12(a) of the ELRC Act grants jurisdiction over employer-employee disputes; and Article 165(5) donates jurisdiction to interpret the Constitution and determine violations of fundamental rights in employment matters. Adopting Majanja J's decision in USIU v Attorney General, excluding the Court from rights arising from employment relationships would create parallel jurisdiction with the High Court.
Whether the Petition is time barred and incompetent
Not determined on the merits; the delay and limitation issues were found res judicata and must await trial as directed by Ndolo J.
Although the Respondents argued the Petition was time barred under section 90 of the Employment Act and section 3 of the Public Authorities Limitations Act, and that no leave to file out of time was sought, the court found these very issues were previously raised in the preliminary objection and determined by Ndolo J, who held the question of delay should be resolved after full ventilation of the Petition. The court therefore did not rule substantively on limitation.
Legal principles established
#- The ELRC has jurisdiction to hear and determine constitutional petitions alleging violation of fundamental rights and freedoms arising out of employment and labour relations.
- An application seeking orders already decided in an earlier ruling on a preliminary objection is res judicata.
Court orders
#- 1.The application dated 23.11.2018 is dismissed with costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya 2010; section 12(a) of the Employment and Labour Relations Court Act; Article 165(5) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Murji Mathenge & 28 others v Attorney General & 2 others [2019] KEELRC 895 (KLR)", Case Analysis (2019). Notice of Motion dated 23.11.2018 in ELRC Petition (Petition herein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/895/eng@2019-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.