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ELRCOtherNot stated in the judgment extract· [2019] KEELRC 1376 (KLR)

Jeremiah Mwangi Njoroge v Jeremiah Mwangi Njoroge & 2 others [2019] KEELRC 1376 (KLR)

Employment and Labour Relations Court
14 June 2019
BOByram Ongaya
1,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can hear a worker's constitutional challenge to criminal charges arising from an employment dispute.

What this practically means

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Executive summary

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The petitioner filed a petition on 02.05.2019 through Mwadumbo & Company Advocates challenging the respondents' decision to charge him with stealing by servant contrary to section 281 of the Penal Code over the 1st respondent's alleged missing funds, while conspicuously failing to charge one Tabitha Mothoni Kibanga alongside him. He sought declarations that the decision was malafides, irrational, unreasonable, illegal and an abuse of discretion under Article 157(6), breaching Articles 27, 35(1), 47(1), 50(2) and 157(11), together with an order of certiorari to quash the decision to charge him, and costs. He also filed a notice of motion seeking conservatory orders restraining the respondents from instituting, prosecuting or continuing criminal charges or issuing summons or warrants of arrest. The 1st respondent filed grounds of opposition contending that the petition raised no cause of action or constitutional question and was premature and an abuse of process. The 2nd respondent filed a preliminary objection contending that the petition fell outside the ELRC's jurisdiction, the matter being reserved for the High Court, and should be struck out. The Court dismissed both objections. It held that the petition raised arguable constitutional questions and that the prematurity objection rested on disputed facts requiring evidence. On jurisdiction, applying section 12 of the ELRC Act and the USIU decision as confirmed by the Court of Appeal, the Court held the matter squarely within its jurisdiction because the criminal proceedings emerged from the employment relationship. Both preliminary objections were dismissed with costs and parties directed to take further steps toward expeditious determination of the petition and application.

Key legal issues

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01

Jurisdiction of the ELRC over a petition challenging criminal charges arising from an employment relationship

Holding

The Court found that the matter squarely falls within its jurisdiction because the criminal investigation and prosecution emerged from the petitioner's employment relationship with the 1st respondent.

Reasoning

Section 12 of the Employment and Labour Relations Court Act extends the Court's jurisdiction to all matters between employers and employees arising out of the contract of service, covering civil, criminal and other disputes within that subject. While criminal cases under section 29 of the Act vest in the Magistrates' Courts, the dispute here originated in the employment relationship, and the Court of Appeal in USIU confirmed the ELRC's jurisdiction over constitutional questions arising from such relationships.

p. 3
02

Whether the petition against the 1st respondent was premature

Holding

The Court rejected the prematurity objection, noting evidence that criminal proceedings had already been initiated.

Reasoning

The petitioner exhibited a cash bail receipt showing that investigations and prosecution had commenced, so the claim of prematurity was unfounded. Further, prematurity would require analysis of evidence, which cannot be resolved on a preliminary objection. Since specific reliefs were prayed against the 1st respondent, it was a proper party.

p. 2

Legal principles established

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  • The ELRC has jurisdiction to interpret the Constitution and deal with rights and fundamental freedoms howsoever arising from relationships defined in section 12 of the Employment and Labour Relations Court Act
  • A preliminary objection founded on disputed facts or facts requiring analysis of evidence must fail

Court orders

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  1. 1.The preliminary objections filed for the 1st and 2nd respondents are dismissed with costs
  2. 2.Parties directed to take further steps towards the expeditious and just determination of the application and the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 27(1), 27(4), 27(5), 35(1), 47(1), 50(2)(a), 50(2)(j), 157(6), 157(11)
  • Employment and Labour Relations Court ActCap 234B, sections 12 and 29
  • Penal CodeSection 281 (stealing by servant)

Cases cited (2)

  • Republic-Versus- Karisa Chengo & 2 Others
    [2017]eKLR
  • United States International University (USIU) –Versus- Attorney General & 2 Others
    [2012]eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act Cap 234B

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, "Jeremiah Mwangi Njoroge v Jeremiah Mwangi Njoroge & 2 others [2019] KEELRC 1376 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1376/eng@2019-06-14

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