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ELRCDismissedPetition No. 207 of 2019· [2020] KEELRC 764 (KLR)

Paul Kipchirchir Bii v Cabinent Secretary, Water & Sanitation & Irrigation; Eric Okeyo (Interested Party) [2020] KEELRC 764 (KLR)

Employment and Labour Relations Court
25 June 2020
HWHellen Wasilwa
1,505 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 ruled that a judicial review case and a constitutional petition are separate cases, so the petition could proceed.

What this practically means

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Executive summary

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The court (Hon. Lady Justice Hellen Wasilwa, J) ruled on a Notice of Preliminary Objection dated 12th February 2020 raised by the Respondent in an ELRC Petition (No. 207 of 2019) concerning the revocation of the Petitioner's appointment, allegedly connected to the appointment of an Interested Party as Chairman of Lake Victoria South Water Works Development Agency. The Respondent argued the suit was sub judice by dint of Kisumu ELRC Miscellaneous Application No. 164 of 2019, a Judicial Review application; that the Petitioner was circumventing the Employment Act and Labour Relations Act by relying on constitutional provisions to avoid a statute-barred claim; that there was a duplicate file; and that the suit was an abuse of process, incompetent and ought to be struck out with costs. The Respondent alternatively sought consolidation under Order 11 Rule 3(1)(h) of the Civil Procedure Rules or a stay of proceedings under Section 6 of the Civil Procedure Act and Order 38 Rule 2. The Petitioner countered that sub judice requires identical parties, title and relief, that Petition No. 207 of 2019 had been withdrawn on 20th December 2019, and that Judicial Review proceedings are neither civil nor criminal and fall outside Section 6 of the Civil Procedure Act, relying on Edward Ouko, Kunste Hotels and Sanghani Investment. The Petitioner also argued the objection was founded on disputed facts contrary to Mukisa Biscuits. The court held that Judicial Review applications and Petitions are distinct, that the parties and orders sought differed, and dismissed the preliminary objection.

Key legal issues

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01

Whether the Petition is sub judice given the pending Judicial Review application (Misc. Application No. 164 of 2019)

Holding

The objection fails: Judicial Review applications and Petitions are distinct, and the parties and orders sought are different

Reasoning

The court adopted the position that Judicial Review is neither civil nor criminal, so it is not a 'suit' under Section 6 of the Civil Procedure Act. Further, the JR application challenged an administrative procedure resulting in Gazette Notice No. 9868 of 17th October 2019, while the Petition sought determination of alleged constitutional rights violations. The parties also differed, the JR applicant not being a party to the Petition.

p. 2
02

Whether a preliminary objection premised on disputed facts is competent

Holding

No; a preliminary objection must rest on purely points of law assuming pleaded facts are correct

Reasoning

Relying on Mukisa Biscuits and related authorities cited by the Petitioner, the court accepted that a preliminary objection cannot be raised where facts have to be ascertained or where the exercise of judicial discretion is sought. The plea of sub judice here rested on disputed facts.

p. 2

Legal principles established

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  • Judicial Review applications are neither civil nor criminal in nature and are distinct from petitions
  • Section 6 of the Civil Procedure Act (sub judice) does not apply to Judicial Review proceedings

Court orders

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  1. 1.The Preliminary Objection dated 12th February, 2020 is dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 41, 47, 50(1)
  • Civil Procedure ActSection 6
  • Civil Procedure Rules, 2010Order 11 Rule 3(1)(h); Order 38 Rule 2
  • Employment Actnot specified
  • Labour Relations Actnot specified
  • Water Actnot specified
  • Fair Administrative Action Actnot specified

Cases cited (15)

  • Republic Vs Registrar of Societies – Kenya & 2 Others ex parte Moses Kirima & 2 Others
    (2017) eKLR
  • ASL Credit Limited Vs Abdi Basid Sheikh Ali & Another
    (2019) eKLR
  • Edward Ouko Vs Speaker of the National Assembly & 4 Others
    (2017) eKLR
  • Commissioner of Lands Vs Kunste Hotels Limited
    (1995 – 1998) 1 EA 1
  • Sanghani Investment Limited Vs Officer in Charge Nairobi Remand and Allocation Prison
    (2007) 1 EA 354
  • Ukay Estate Limited & Another Vs Shah Hirji Manek Limited & 2 Others
    (2006) eKLR
  • Independent Electoral & Boundaries Commission Vs Jane Cheperenger & 2 Others
    (2015) eKLR
  • Grace Wanjiku Vs Joseph Wainaina Mararo & Another
    (2019) eKLR
  • Republic Vs Attorney General (Sued for and on behalf of the Ministry of Lands) & 2 Others Ex-parte South and Central (Thika) Investment Limited & Another
    (2016) eKLR
  • Oraro Vs Mbaja
    (2005) eKLR
  • Mukisa Biscuits Manufacturing Company Limited
    (1969) EA 696
  • Law Society of Kenya Vs Centre for Human Rights & Democracy & 12 Others
    (2014) eKLR
  • David Ojwang Okebe & 11 Others Vs South Nyanza Sugar Company Limited & 2 Others
    (2009) eKLR
  • Hilton Walter Nabongo Osinya Vs Savings & Loan (K) Limited & Another
    HCCC No. 274 of 1998
  • R M G Vs N G Interested Party S P Limited & M D Limited
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution of Kenya, 2010 (Petition alleging infringement of Articles 27, 28, 41, 47 and 50(1))

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, "Paul Kipchirchir Bii v Cabinent Secretary, Water & Sanitation & Irrigation; Eric Okeyo (Interested Party) [2020] KEELRC 764 (KLR)", Case Analysis (2020). Petition No. 207 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/764/eng@2020-06-25

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