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ELRCStruck OutNotice of Motion (Judicial Review) arising from CMCC No. 7977 of 2013, Apollo Kingori Wanderi v Attorney General and County Commissioner of Kiambu· [2020] KEELRC 1430 (KLR)

Apollo Kingori Wanderi v Attorney General & another [2020] KEELRC 1430 (KLR)

Employment and Labour Relations Court
21 February 2020
OMOnesmus N. Makau
796 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan contractor lost his bid to enforce a Kshs 689,735 court decree after filing in the wrong court and using the wrong document.

What this practically means

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Executive summary

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The applicant moved the Employment and Labour Relations Court by Notice of Motion under Article 47(1) of the Constitution and section 11(2) of the Fair Administrative Actions Act seeking an order of mandamus compelling the Attorney General and the Principal Secretary, Ministry of Finance, to satisfy a decree of Kshs. 689,735/- plus interest and Kshs. 86,975/- costs from CMCC No. 7977 of 2013, Apollo Kingori Wanderi v Attorney General and County Commissioner of Kiambu. The respondents raised a preliminary objection contending that the court lacked jurisdiction because the dispute was not an employment matter under section 12 of the Employment and Labour Relations Court Act, that the applicant was a tender contractor not an employee under the Employment and Labour Relations Act, and that no leave was obtained for judicial review under Order 53. Although the parties agreed to dispose of the objection by written submissions, none were filed; instead the applicant applied for transfer to the High Court. The court held that the dispute concerned unpaid charges for repair of the respondent's motor vehicle under a tender - a contract for services by an independent contractor, not a contract of service - so the ELRC lacked jurisdiction under section 12 read with Articles 162(2)(a) and 165(5) of the Constitution. It further found the suit incompetent, being neither a judicial review application nor a constitutional petition, applying Proto Energy Limited v Hashi Energy Limited on the impermissibility of instituting suit by bare Notice of Motion. The court downed its tools, struck out the suit with costs to the respondents, and granted the applicant liberty to file before a competent court.

Key legal issues

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01

Whether the ELRC has jurisdiction over a claim for unpaid charges for repair of a government motor vehicle

Holding

The court lacks jurisdiction; the dispute concerns a contract for services by an independent contractor, not a contract of service

Reasoning

The exhibits showed the claim was for unpaid charges for repair of the respondent's motor vehicle. The applicant was on a tender contract with the Government, not employment. Section 12 of the Employment and Labour Relations Act, read with Articles 162(2)(a) and 165(5) of the Constitution, confines the ELRC to disputes related to contracts of service and labour relations only, so the court could not entertain the claim.

p. 2
02

Whether the suit as instituted was competent

Holding

The suit was incompetent; it was neither a judicial review application under Order 53 nor a constitutional petition, but a bare Notice of Motion

Reasoning

Relying on Proto Energy Limited v Hashi Energy Limited, the court found that a Notice of Motion is not a recognized originating process and can only be filed within a properly instituted suit. The applicant filed no originating process, so the suit was defective and incompetent.

p. 2
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Whether the suit should be transferred to the High Court

Holding

No transfer; the suit was struck out instead, with liberty to file before a competent court

Reasoning

Having found the court lacked jurisdiction and the suit incompetent, the court declined to transfer the matter and instead downed its tools, striking out the suit but preserving the applicant's right to institute the claim in a court of competent jurisdiction.

p. 2

Legal principles established

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  • The ELRC's jurisdiction is limited to disputes related to contracts of service and labour relations; disputes over contracts for services by independent contractors fall outside it
  • A Notice of Motion is not a legally recognized originating process; suits enforcing constitutional rights must be commenced by petition

Court orders

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  1. 1.Suit struck out for lack of jurisdiction
  2. 2.Costs of the suit awarded to the respondents
  3. 3.Applicant at liberty to file his suit before a competent court

Authorities

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Legislation

  • Constitution of KenyaArticle 47(1)
  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticle 165(5)
  • Fair Administrative Actions Actsection 11(2)
  • Employment and Labour Relations Court Actsection 12
  • Employment and Labour Relations Actsection 2
  • Civil Procedure RulesOrder 53 Rule 1(2)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)section 10(1)

Cases cited (1)

  • Proto Energy Limited v Hashi Energy Limited
    [2019] eKLR
Jurisdiction invoked
Article 162(2)(a) and 165(5) of the Constitution read with section 12 of the Employment and Labour Relations Act; application brought under Article 47(1) of the Constitution and section 11(2) of the Fair Administrative Actions Act

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, "Apollo Kingori Wanderi v Attorney General & another [2020] KEELRC 1430 (KLR)", Case Analysis (2020). Notice of Motion (Judicial Review) arising from CMCC No. 7977 of 2013, Apollo Kingori Wanderi v Attorney General and County Commissioner of Kiambu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1430/eng@2020-02-21

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