Bernard Odero Okello & Kenya Investors Association v Cabinet Secretary for Industrialization Trade and Enterprise Development & Attorney General; Cyprian Mugambi Ngutari, Patricia May Chepkirui, Kyalo Mbobu, Andrew Muma, Chege Charles Gakuhi & Law Society of Kenya (Interested Parties) [ (Petition 100 & 99 of 2020) (Employment and Labour) [2020] KEELRC 547 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can hear challenges to how Tribunal members are appointed and refused to lift orders halting the Tribunal's work.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over challenges to appointment of Tribunal members
The ELRC has jurisdiction; the dispute is employment-related as it challenges the appointment of public officers in an employment capacity, and the Petitioners invoked Articles 22 and 258 in the public interest.
Under Article 162(2)(a) and Section 12(1)(a) of the ELRC Act, the Court has exclusive jurisdiction over employment disputes. The substratum of the Petitions is the appointment and composition of the Tribunal, an employment matter. Public interest standing under Articles 22(2)(c) and 258(2)(c) does not require an employer-employee nexus between the Petitioners and the Applicants. Nothing in the dispute relates to environment and land to invite the ELC.
Review of the Court's Orders of 15th July, 2020
Review is denied; no discovery of new and important matter, no error apparent, and no sufficient reason analogous to the Rule 33 grounds was established.
Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules permit review on discovery of new matter, error apparent, need for clarification, or any other sufficient reason. The Applicants raised the same issues already considered when the orders were made. Public interest in the Tribunal's docket cannot outweigh the alleged unconstitutionality of the Tribunal's composition, and the ELC can hear landlord-tenant disputes in the interim.
Whether the Petitions ought to be dismissed
Dismissal can only be considered after substantive hearing of the Petition; the prayer is unmerited and dismissed.
The Applicants' final prayer for dismissal of the consolidated Petitions is premature, as it would require determination of the substantive constitutional questions which are yet to be heard on the merits under the fast-tracked directions already issued.
Legal principles established
#- The compass or golden test for the ELRC's jurisdiction is the subject matter of the dispute, not the remedies sought, the procedure, or the applicable law.
- In public interest litigation under Articles 22 and 258, no employment nexus is required between the petitioner and the persons appointed.
- Human rights in the Bill of Rights enjoy prima facie inviolability and trump public interest considerations.
- Review for 'any other sufficient reason' must be on grounds sufficiently analogous to those specified in the rule, on very strong grounds.
Court orders
#- 1.The entire Motion dated 21st July, 2020 filed by the 1st to 5th Interested Parties is dismissed.
- 2.The prayer to review the Orders of 15th July, 2020 is denied.
- 3.The prayer for dismissal of the Petitions is dismissed.
- 4.Costs shall abide the outcome of the Petitions.
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act; Articles 22 and 258 of the Constitution (public interest enforcement of the Bill of Rights)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya National Union of Nurses v Cabinet Secretary, Ministry of Public Service, Youth and Gender Affairs & 3 others [2022] KEELRC 913 (KLR)[2022] KEELRC 913 (KLR)3 Feb 2022applied
- Republic v Kenya Unviversities and Colleges Central Placement Service Ex parte Adrian Kamotho Njenga [2021] KEELRC 1192 (KLR)[2021] KEELRC 1192 (KLR)23 Jul 2021
Cite this brief
#Cite this brief
Caselaw, "Bernard Odero Okello & Kenya Investors Association v Cabinet Secretary for Industrialization Trade and Enterprise Development & Attorney General; Cyprian Mugambi Ngutari, Patricia May Chepkirui, Kyalo Mbobu, Andrew Muma, Chege Charles Gakuhi & Law Society of Kenya (Interested Parties) [ (Petition 100 & 99 of 2020) (Employment and Labour) [2020] KEELRC 547 (KLR)", Case Analysis (2020). Petition No. 100 of 2020 (consolidated with Petition No. 99 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/547/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.