Kenya Council of Employment and Migration Agencies v Attorney General & 3 others; State Department for Public Service & 2 others (Interested Parties) [2020] KEELRC 479 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Locus standi of a civil society organization
The Applicant has locus standi. Article 258 permits proceedings in the public interest, and Article 260 defines the Applicant as a person; the liberal constitutional approach to standing applies.
Relying on Odunga J in Sollo Nzuki and on Articles 3(1), 22, 258 and 260, the court held that the Constitution has opened the doors of the courts very wide. The dispute, concerning an allegedly irregular public appointment, was a matter of public interest, and Article 258(2)(c) permits a person acting in the public interest to institute proceedings.
Jurisdiction of the Employment and Labour Relations Court
The Court has jurisdiction because the substance of the dispute is the appointment of a person into a position of public service, which falls within the realm of the ELRC notwithstanding that the Applicant is not among the categories in Section 12(2).
Applying Owners of Motor Vessel 'Lillian S' and the Gcaba principle that jurisdiction is determined from the pleadings, the court read the pleadings and found the challenge was to the 4th Respondent's appointment as AIE Holder at Naconeti Kenya without due process and in breach of fundamental rights, a public-service matter falling within the Court's jurisdiction under Article 162(2).
Compliance with Order 53 Rules 2 and 7(1) of the Civil Procedure Rules
Order 53 does not apply to constitutional petitions seeking judicial review reliefs; Article 47 and Article 23(3) have subsumed administrative law remedies into the Constitution, and the six-month time limit under Order 53 Rule 2 does not bar a claim brought under Article 47.
The court adopted Mativo J's reasoning in Joyce Cherop Kaspandoy quoting Masai Mara (SOPA) Limited, that judicial review is now a constitutional remedy under Article 23(3)(f) and section 7 of the Fair Administrative Action Act, so the strictures of Order 53 including the six-month limitation do not apply where relief is sought for violation of fundamental rights.
Legal principles established
#- A court's jurisdiction is determined on the basis of the pleadings and not the substantive merits of the case.
- Where a litigant moves the court under Article 47 of the Constitution citing violation of fundamental rights, the six-month time limit in Order 53 Rule 2 of the Civil Procedure Rules is not a bar to judicial review relief.
- A preliminary objection against an application for leave to commence judicial review proceedings is premature because no substantive motion capable of being struck out is yet on record.
Court orders
#- 1.The notice of preliminary objection dated 17th January 2020 is dismissed.
- 2.The application dated 27th December 2019 is fixed for hearing on 26th October 2020.
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Act (impugned by the Objectors); the court found jurisdiction under Article 162(2) as the dispute concerns appointment to a position of public service, with reliefs under Articles 22, 23(3), 47 and 258
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Council of Employment and Migration Agencies v Attorney General & 3 others; State Department for Public Service & 2 others (Interested Parties) [2020] KEELRC 479 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/479/eng@2020-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.