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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 662 (KLR)

Thuranira Salesio Mutuma v Ethics & Anti-Corruption Commission & another [2021] KEELRC 662 (KLR)

Employment and Labour Relations Court
22 October 2021
2,239 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Employment Court ruled it lacked jurisdiction to compel an EACC corruption investigation, sending the case to the High Court's Anti-Corruption Division instead.

What this practically means

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Executive summary

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The petitioner sued in November 2020 seeking declarations and orders compelling the Ethics and Anti-Corruption Commission (1st respondent) to investigate alleged corruption by the Vice Chancellor of Meru University of Science and Technology (2nd respondent), and to bar the 2nd respondent from performing his duties if wrongdoing was established. Both respondents filed preliminary objections contending, among other grounds, that the ELRC lacked jurisdiction, that there was no employment relationship between the parties, that the matter fell under the Public Procurement and Assets Disposal Act regime, and that the petitioner lacked locus standi. The objection was canvassed by written submissions. The court first applied the Mukisa Biscuit test and found the objection raised pure points of law. On jurisdiction, it held that under Article 162(2) of the Constitution and section 12 of the ELRC Act, the court's specialised jurisdiction — including its power to interpret the Constitution — is confined to employment and labour relations disputes, applying the Court of Appeal's decision in Attorney General v Okiya Omtata Okoit. Since the petitioner established no employment relationship and no established constitutional violation by the 2nd respondent, the jurisdiction was prematurely and improperly invoked; the petitioner must first await investigations by the relevant authority. The court allowed the objection, downed its tools, and — rather than striking out the petition — referred it to the High Court, Anti-Corruption and Economic Crimes Division at Nairobi. Because the petition was public-interest litigation, each party was directed to bear its own costs.

Key legal issues

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01

Whether the preliminary objection raises pure points of law

Holding

The objection raises pure points of law capable of disposing of the entire petition, notably jurisdiction.

Reasoning

Applying the Mukisa Biscuit test, the court noted that a valid preliminary objection raises a pure point of law on the assumption that all facts pleaded by the other side are correct. The grounds raised, particularly on jurisdiction and exhaustion of statutory remedies, require no ascertainment of facts or exercise of judicial discretion, and so qualify as proper preliminary objections.

p. 4
02

Whether the ELRC has jurisdiction over the petition

Holding

The court lacks jurisdiction because there is no employment relationship between the parties and the constitutional interpretation jurisdiction of the ELRC is limited to employment and labour relations matters.

Reasoning

The petitioner did not establish any employment relationship or employment issue placing the dispute within the ELRC's specialised jurisdiction under Article 162(2) and section 12 of the ELRC Act. Relying on the Court of Appeal in the Omtata case, the court held that its power to interpret the Constitution is confined to employment and labour disputes, not general constitutional claims such as compelling the EACC to investigate alleged corruption.

p. 4
03

Whether the court can grant the prayers sought

Holding

No — the petition was prematurely and improperly invoked, and the court cannot direct the EACC on how to perform its investigative mandate.

Reasoning

The court could not compel the EACC to investigate before investigations have established wrongdoing. Citing authorities on the independence of investigative bodies, the court held that intervention is only proper after the relevant authority has investigated and implicated the officer concerned; hence the prayers could not be granted in this forum.

p. 4

Legal principles established

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  • The jurisdiction of specialised courts (ELRC/ELC) to interpret and apply the Constitution is limited to issues arising in the context of their specialised disputes, not the general interpretation of the Constitution.
  • A party must first exhaust investigations by the relevant statutory authority before invoking the court where the alleged corruption has not been established.

Court orders

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  1. 1.The preliminary objection dated 23.11.2020 is allowed to the extent that the court lacks jurisdiction to entertain and grant the orders sought in the petition
  2. 2.The petition is referred to the High Court, Anti-Corruption and Economic Crimes Division at Nairobi for determination
  3. 3.Each party shall bear own costs

Authorities

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Legislation

  • Public Procurement and Assets Disposal Actsection 9(h)
  • Ethics and Anti-Corruption Actsection 28
  • Employment and Labour Relations Court Actsection 12
  • Constitution of KenyaArticles 41, 162(2), 165(5)
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (12)

  • Towett Geoffrey & another v Thomas Kimeli Cheruiyot & 5 others
    [2020] eKLR
  • Comminication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Daniel N. Mugendi v Kehyatta University & 38 others
    [2013] eKLR
  • The Owners of the Motor vessel “Lilian S” v Caltex Oil (K) Ltd
    [1989] eKLR
  • S.K. Macharia v Kenya Commercial Bank & 2 others
    [2012] eKLR
  • R v Anti-counterfeit Agency & 2 others Exparte Surghipharm
    [2015] eKLR
  • R v Commissioner of Police & another Exparte Monari & another
    [2012] eKLR
  • Nitin Properties Limited v Jagjit Sing Kalsi & another
  • Mukisa Biscuit Company v Westend Distributors Limited
    [1969] EA 696
  • Richard Maina Mwangi v John Kaguchia Chairman Mukurwe-ini CDF Committee & another
    [2015] eKLR
  • Attorney General & 2 others v Okiya Omtata Okoit & 14 others
    [2020] eKLR
  • United States International University (USIU) v The Attorney General & others
    [2012] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and section 12 of the ELRC 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, "Thuranira Salesio Mutuma v Ethics & Anti-Corruption Commission & another [2021] KEELRC 662 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/662/eng@2021-10-22

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