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ELRCDismissedPetition (ELRC, Nairobi), 2019· [2019] KEELRC 951 (KLR)

Proscovia Vitsengwa v Chairperson,Kenya Railway Corporation Board & 4 others Attorney General (Interested Party) [2019] KEELRC 951 (KLR)

Employment and Labour Relations Court
2 August 2019
MOMaureen Onyango
3,116 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Kenya Railways couldn't block an employee's constitutional case on technicalities, and the case proceeds to a full hearing.

What this practically means

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Executive summary

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The petitioner filed a petition and notice of motion on 2nd July 2019 seeking suspension of the filling of 27 Senior Management positions advertised by the Kenya Railways Corporation and of an ongoing staff restructuring exercise. The 1st, 2nd and 3rd respondents filed notices of preliminary objection dated 15th and 17th July 2019 raising res judicata against ELRC Petition No. 21 of 2018 (Okiya Omtatah Okoiti), abuse of process, want of jurisdiction of the court to entertain constitutional petitions in employment matters, lack of locus standi under Section 12(2) of the ELRC Act and Section 73(1) of the Labour Relations Act, usurpation of trade union functions, and defective affidavits under Order 19 rule 3 of the Civil Procedure Rules. In submissions, counsel for the respondents relied on authority that res judicata applies to constitutional litigation and that affidavits repeating unknown petition allegations are inadmissible; counsel for the petitioner countered that the two petitions arose from different advertisements, involved different parties, and that Articles 22 and 258(2) confer broad standing. Relying on the Mukisa Biscuit definition of a preliminary objection as a pure question of law, the court held that the affidavit-admissibility issue depends on cross-examination at trial, that res judicata requires factual comparison of the two petitions (different petitioners, advertisements, capacities and grounds) and should be invoked only in the clearest of cases, and that locus standi likewise requires examination of the merits, Articles 22(2) and 258(2) appearing to extend standing to practically any person. The court dismissed both preliminary objections with costs on 2nd August 2019, leaving the petition and application to proceed to hearing.

Key legal issues

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01

Admissibility of affidavit averments adopted from the petition

Holding

The objection on admissibility fails; credibility of affidavit averments can only be tested on cross-examination at hearing, not via preliminary objection.

Reasoning

Order 19 Rules 2 and 3 of the Civil Procedure Rules permit cross-examination of a deponent and require facts within knowledge or statements of information and belief showing sources. There is no rule prohibiting a deponent from adopting averments in pleadings. Whether the deponent could prove the allegations is a factual matter for trial, not a pure question of law.

p. 5
02

Res judicata

Holding

Not suitable for determination as a preliminary objection because the court would first have to establish facts in both petitions.

Reasoning

The petitioners in the two petitions are different, both litigating in public interest; the petitions were precipitated by different advertisements (6th March 2018 for 15 positions versus 17th May 2019 for 27 positions); respondents are sued in different capacities and the grounds differ. Res judicata should only be invoked in the clearest of cases, requiring factual comparison of the two suits.

p. 5
03

Locus standi

Holding

Also unsuitable for preliminary objection; Articles 22(2) and 258(2) appear to extend locus to practically any person alleging constitutional contravention.

Reasoning

Determination of locus standi would require parties to go into the merits of the prayers sought and should be subjected to trial. On the face of the constitutional provisions, any person alleging that the Constitution has been contravened or is threatened with contravention may file suit, so the objection cannot succeed on a pure point of law.

p. 5

Legal principles established

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  • A preliminary objection must be a pure question of law raised where there is no contest on the facts.
  • Res judicata should only be invoked in the clearest of cases.
  • Issues requiring ascertainment of facts or testing of credibility are unsuitable for disposal as preliminary objections.
  • Articles 22(2) and 258(2) of the Constitution extend locus standi broadly to any person alleging contravention of the Constitution.

Court orders

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  1. 1.The two preliminary objections dated 15th and 17th July 2019 dismissed
  2. 2.Costs of the preliminary objections awarded to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 22(2)(c), 238, 41, 159, 258(2)
  • Civil Procedure RulesOrder 19 rules 2, 3 and 6; Order 39 rule 3 (as cited by respondents)
  • Employment Actnot specified
  • Labour Relations Act, 2007Sections 2, 12, 13, 73(1)
  • Employment and Labour Relations Court ActSection 12(2)
  • Evidence ActSection 63(2)
  • Civil Procedure Actnot specified
  • Mutunga Rulesnot specified
  • Employment and Labour Relations Court (Procedure) Rulesnot specified

Cases cited (12)

  • Kenya Commercial Bank Limited v Muiri Coffee Estate Limited and Another
    (2016) eKLR
  • Judicial Service Commission v Gladys Boss Sholei
  • Kamlesh Masuku/Damji Pattni v Nasir Ibrahim and 2 Others
    (2005) eKLR
  • Mwavumbo Group Ranch v National Land Commission and 3 Others
    (2019) eKLR
  • Gabriel Mutava and 2 Others v Managing Director Kenya Ports Authority Another
    (2016)
  • Dockworkers Union Limited v Messina Kenya Limited
    (2019) eKLR
  • Isaac Kamau Kabira and 3 Others v Commissioner of Lands and 7 Others
  • Wycliffe Gisebe Nyakina v Attorney General and Another
  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors
  • Aviation and Allied Workers Union v Kenya Airways Limited and 3 Others
  • Okiya Omtata v Attorney General and 2 Others
    Petition No. 593 of 2013
  • Okiya Omtatah Okoiti v Kenya Railways Board of Directors & 4 Others
    ELRC Petition No. 21 of 2018
Jurisdiction invoked
Articles 22(1), 22(2)(c), 41 and 258(2) of the Constitution; Employment and Labour Relations Court (Procedure) Rules

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, "Proscovia Vitsengwa v Chairperson,Kenya Railway Corporation Board & 4 others Attorney General (Interested Party) [2019] KEELRC 951 (KLR)", Case Analysis (2019). Petition (ELRC, Nairobi), 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/951/eng@2019-08-02

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