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ELRCDismissedNotice of Motion dated 23.11.2018 in ELRC Petition (Petition herein)· [2019] KEELRC 895 (KLR)

Michael Murji Mathenge & 28 others v Attorney General & 2 others [2019] KEELRC 895 (KLR)

Employment and Labour Relations Court
20 September 2019
1,586 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 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

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Executive summary

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The Respondents (Applicants) filed a Notice of Motion dated 23.11.2018 seeking to have the Petition heard in priority to the main Petition and to strike out and/or dismiss the Petition in its entirety, with costs. They argued the Petition was time barred under sections 3 and 5 of the Public Authorities Limitations Act and section 90 of the Employment Act, that no leave to file out of time was sought, that the Petition raised no constitutional issues, and that the ELRC lacked jurisdiction. The Petitioners opposed, contending they were victims of torture by the previous regime, that limitation statutes do not inhibit enforcement of fundamental rights under Articles 22 or 258, and that the court should favour substantive justice under Article 159. The court framed three issues: res judicata, jurisdiction, and limitation. On res judicata, it found the motion re-litigated grounds of inordinate delay and competence already determined by Ndolo J in her ruling of 9th January 2018 dismissing a preliminary objection dated 24.5.2017; those issues must await trial. On jurisdiction, the court held that Article 162(2)(a), section 12(a) of the ELRC Act and Article 165(5) confer jurisdiction over constitutional violations arising in employment, fortifying this with Majanja J's decision in USIU v Attorney General. The limitation question was not determined on the merits. The court dismissed the application dated 23.11.2018 with costs.

Key legal issues

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01

Whether the motion dated 23.11.2018 is res judicata

Holding

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.

Reasoning

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.

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02

Whether the Court has jurisdiction over the Petition

Holding

The Court has jurisdiction because the alleged constitutional infringements occurred in the course of the Petitioners' employment with the Kenya Defence Forces.

Reasoning

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.

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03

Whether the Petition is time barred and incompetent

Holding

Not determined on the merits; the delay and limitation issues were found res judicata and must await trial as directed by Ndolo J.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The application dated 23.11.2018 is dismissed with costs

Authorities

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Legislation

  • Public Authorities Limitations Actsections 3 and 5
  • Employment Actsection 90
  • Employment and Labour Relations Court Actsection 12(a)
  • Industrial Court Actsection 12
  • Constitution of Kenya 2010Articles 22, 41, 50, 159, 162(2)(a), 165(5), 258
  • Constitution of Kenya 1969(referred to as the Constitution under which the Petition was premised)

Cases cited (10)

  • Center for Rights Education and Awareness & Another vs. John Harun Mwau & 6 Others
    [2012] eKLR
  • Republic vs. Karisa Chengo & 2 Others
    [2017] eKLR
  • Moses Mwicigi & 14 Others vs. Independent Electoral and Boundaries Commission & 5 Others
  • Wellington Nzioka Kioko v Attorney General
    [2018] eKLR
  • Lt. Col. Peter Ngari Karume & Others vs. Attorney General
    [2009] eKLR
  • James Kanyita Nderitu vs Attorney General and Another
    Petition No. 180 of 2011
  • Peter N. Kariuki vs. the Attorney General
    [2014] eKLR
  • Charles Gachathi Mboko vs. Attorney General
    [2014] eKLR
  • Wellington Nzioka Kioko vs. Attorney General
    [2016] eKLR
  • United States International University (USIU) v Attorney General
    [2012] eKLR
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

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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, "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.