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ELRCOtherJudicial Review Application (ELRC, Nakuru) - exact number not stated in judgment· [2021] KEELRC 774 (KLR)

Republic v Chairman, Board of Directors National Water Harvesting & Storage Authority & another Ex Parte David Ngure Kairu; Sharon Obonyo (Interested Party) [2021] KEELRC 774 (KLR)

Employment and Labour Relations Court of Kenya
12 October 2021
1,421 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 and Labour Relations Court can hear employment cases anywhere in the country, regardless of where the employer is based.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru (Wasilwa J) determined a preliminary objection raised on 7th June 2021 by the Attorney General for the 2nd Respondent, later supported by the interested party, in judicial review proceedings brought by an ex-parte applicant seeking to quash a resolution of 28th April 2021 appointing the interested party as acting chief executive officer of the National Water Harvesting and Storage Authority. The objectors contended that the cause of action arose in Nairobi, where the Authority is headquartered and where the resolutions extending the acting CEO's contract were passed, so the ELRC Nakuru lacked territorial jurisdiction and should down its tools on the authority of Owners of Motor Vessel 'Lilian S' v Caltex. The court, canvassed by written submissions, held that under Article 162(2) the ELRC is a court with the status of the High Court, exercising unlimited territorial jurisdiction throughout the Republic; following Trusted Society of Human Rights Alliance and Kenya Maita Mwawashe, the presence of any of the four traditional elements of jurisdiction suffices, and no geographical bar existed. The preliminary objection was dismissed. However, noting that she had previously handled similar issues, the Judge recused herself from further handling of the application and referred it to a colleague within Nakuru for further directions on the main application. No costs order was made. The ruling was delivered virtually on 12th October 2021.

Key legal issues

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01

Territorial jurisdiction of the ELRC

Holding

The ELRC Nakuru has jurisdiction to entertain the matter notwithstanding that the respondents are headquartered in Nairobi and the resolutions complained of were passed there

Reasoning

Relying on Article 162(2) and prior decisions, the court held that the ELRC is a court of the same status as the High Court. In mapping jurisdiction, four traditional elements apply - parties, territory, remedies and subject matter - and presence of any of them suffices unless it results in a bar. Constitutionally the court exercises territorial jurisdiction throughout the Republic, so no geographical bar arose.

p. 3
02

Recusal

Holding

Having previously handled similar issues, the Judge recused herself and referred the application to a colleague in Nakuru

Reasoning

Although the preliminary objection failed, the Judge noted she had handled issues similar to those raised in the application and, in the interest of justice, stepped aside and referred the main application for directions to another judge within Nakuru.

p. 3

Legal principles established

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  • The ELRC is a court with the status of the High Court with unlimited original and appellate jurisdiction over the whole of Kenya, and is not confined to the geographical area where the cause of action arose

Court orders

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  1. 1.The Preliminary Objection dated 7th June 2021 raising lack of territorial jurisdiction is dismissed
  2. 2.The Judge recuses herself from further handling the application
  3. 3.The application is referred to a colleague within Nakuru for further directions on the main application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162
  • Water ActNo. 43 of 2016, section 11 of the 1st Schedule
  • Industrial Court Actnot specified
  • Industrial Court (Procedure) Rules2010

Cases cited (4)

  • Owners of Motor Vessel "Lilian S" -v- Caltex Motors Limited
    [1989] eKLR
  • Trusted Society of Human Rights Alliance vs Nakuru Water & Sanitation Services Company & The AG
    Nakuru Pet 5/2013
  • Kenya Maita Mwawashe VS Plan International Kenya
    Case No. 5 of 2014
  • Abdi Mohamed Abdullahi –v- the Board National Water Harvesting and Storage Authority, the Cabinet Secretary Water and the Hon Attorney General
    ELRC Petition number 116 of 2020
Jurisdiction invoked
Article 162 of the Constitution (ELRC as a court with the status of the High Court); Water Act No. 43 of 2016, 1st Schedule, section 11 (raised in the other preliminary objection)

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, "Republic v Chairman, Board of Directors National Water Harvesting & Storage Authority & another Ex Parte David Ngure Kairu; Sharon Obonyo (Interested Party) [2021] KEELRC 774 (KLR)", Case Analysis (2021). Judicial Review Application (ELRC, Nakuru) - exact number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/774/eng@2021-10-12

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