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ELRCOtherPetition (not fully stated in the judgment)· [2021] KEELRC 371 (KLR)

Kerongo & 2 others v Nyaoga & 5 others; Kenya National Commission On Human Rights & another (Interested Parties) (Petition E007 of 2021) [2021] KEELRC 371 (KLR)

Employment and Labour Relations Court
25 November 2021
3,989 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed NGOs can sue over workplace rights violations, but most issues were already decided, so the case moved to Kisumu.

What this practically means

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Executive summary

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This is a ruling by Onesmus N Makau, J of the Employment and Labour Relations Court on a notice of preliminary objection dated 29/6/2021 filed by the 1st respondent (Clerk of the Kisii County Assembly) against a petition brought by an NGO on behalf of female staff of the Kisii County Assembly alleging sexual harassment. The 1st respondent raised ten grounds including forum shopping, lack of locus standi for want of privity with his employment contract, res judicata, non-compliance with the Mutunga Rules, and lack of jurisdiction to direct an independent constitutional commission or interfere in his disciplinary process. The court framed six issues. It held the objection raised pure points of law under the Mukisa Biscuits test. On standing, it agreed with the petitioners that Articles 22 and 258 of the Constitution confer capacity to sue, applying the Court of Appeal's reasoning in Mumo Matemu. However, it held that most of the issues raised (fraudulent tendering, abuse of office, staff harassment) had been litigated and determined in Petition No. 32 of 2017 and are res judicata. The court also held it lacks jurisdiction to direct the 6th respondent, an independent constitutional commission, and ordinarily would not intervene in internal disciplinary processes absent breach of natural justice. It declined to condemn forum shopping but, since related matters were pending in Kisumu ELRC Petition No. 18 of 2021, ordered the petition transferred to Kisumu ELRC to be heard together with that petition, with mention on 14.12.2021. Deficiencies in pleading under the Mutunga Rules were held curable by leave. Costs were in the cause.

Key legal issues

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01

Whether the preliminary objection raises pure points of law

Holding

Yes; the grounds are matters of law requiring no ascertainment of facts

Reasoning

The court applied the Mukisa Biscuits test, finding the objection grounds (jurisdiction, res judicata, locus standi, forum shopping) do not require evidence to establish and fall within the classic definition of a preliminary objection.

p. 6
02

Locus standi of the petitioners

Holding

The petitioners have locus standi under Articles 22 and 258 of the Constitution notwithstanding lack of privity in the employment contract

Reasoning

The court held that constitutional enforcement proceedings do not depend on privity; the 2010 Constitution transformed standing so that any person alleging violation or threatened violation of a right may petition. The employment-contract privity argument was rejected for constitutional claims.

p. 7
03

Res judicata

Holding

Most of the issues raised were determined in Petition No. 32 of 2017 and are res judicata; only limited new issues (failure to discipline and lifting of suspension) are not res judicata

Reasoning

The court found the issues in the 5/7/2017 suspension letter (fraudulent tendering, abuse of office, harassment etc.) were litigated and determined on merits in Petition 32 of 2017 and cannot be re-litigated. The genuinely new issues relate to the 27/5/2021 lifting of suspension and the failure to discipline, which overlap with Petition No. 18 of 2021 pending in Kisumu.

p. 7
04

Jurisdiction over the 6th respondent and the employer's disciplinary process

Holding

The court cannot direct the 6th respondent (an independent constitutional commission) and ordinarily will not intervene in internal disciplinary processes absent breach of natural justice

Reasoning

Commissions exercise their constitutional mandate independently; the court lacks jurisdiction to direct how or when they investigate. In workplace discipline, courts intervene only to correct procedural flaws where natural justice or statutory procedures are breached, then step back.

p. 8
05

Forum shopping and transfer

Holding

No party condemned for forum shopping, but transfer to Kisumu ELRC ordered to avoid conflicting decisions with Petition No. 18 of 2021

Reasoning

The judge declined to determine the gazettement question but reasoned that all related matters were filed in Kisumu ELRC, so hearing the petition together with Petition 18 of 2021 would avoid the risk of conflicting decisions on similar issues.

p. 8
06

Incompetence/deficiency of the petition under the Mutunga Rules

Holding

Deficiencies are curable; the petition is not struck out

Reasoning

Non-compliance with Rules 10 and 11 of the Mutunga Rules (precision of pleading, supporting affidavit) could be cured by granting leave to amend; the court's role is to sustain proceedings toward substantive justice rather than chase parties from the seat of justice.

p. 8

Legal principles established

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  • A preliminary objection must raise a pure point of law without recourse to evidence or exercise of discretion
  • The 2010 Constitution fundamentally liberalised locus standi, allowing any person or group to enforce constitutional rights
  • Constitutional commissions are independent and the court cannot direct how and when they perform their mandate
  • Courts are bystanders to internal workplace disciplinary processes unless rules of natural justice or statutory procedures are breached, in which case intervention is limited to correcting procedural flaws

Court orders

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  1. 1.Transfer of the petition to Kisumu ELRC for hearing and determination together with Petition No. 18 of 2021
  2. 2.The petition to be mentioned before the Presiding Judge of the ELRC Kisumu on 14.12.2021 for directions
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 47, 50, 258
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 10 and 11
  • Employment ActSections 6 and 7
  • ELRC Procedure RulesRule 28(3)

Cases cited (14)

  • Law Society of Kenya v Commissioner of Lands & 2 Others
    [2001] eKLR
  • Savings & Loan (K) Ltd v Kanyenje Karagita Gakombe & Another
    [2015] eKLR
  • Fortis Tower Management Ltd & Another v Trade Mark Ltd
    [2018] eKLR
  • Gladys J. Cherono v Board of Trustees NSSF & another
    [2020] eKLR
  • Judicial Service Commission v Salaries and Remuneration Commission and Another
    [] eKLR
  • Matter of Interim Independent Electoral Commission
    [2011] eKLR
  • John Florence Maritime Ltd and another v Cabinet Secretary for Transport and Infrastructure and 3 others
    [2015] eKLR
  • Daniel Toroitch Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Gitau Kamau v Ndungu Kamau and Another
    [2017] eKLR
  • Godfrey Paul Okuuoti v Habil Olaka & another
    [2018] eKLR
  • Alice Kerubo Nyambati v Ochoki Mogakaa & another Kisii HCC No. 263 of 2009
    unreported
  • Kanti and Company Ltd v South British Insurance Co. Ltd
    [1981] eKLR
  • Mukisa Biscuits v Westend Distributor Ltd
    [1969] EA 696
Jurisdiction invoked
Articles 22 and 258 of the Constitution of Kenya 2010 (standing to enforce constitutional rights); employment dispute within the ELRC

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, "Kerongo & 2 others v Nyaoga & 5 others; Kenya National Commission On Human Rights & another (Interested Parties) (Petition E007 of 2021) [2021] KEELRC 371 (KLR)", Case Analysis (2021). Petition (not fully stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/371/eng@2021-11-25

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