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ELRCStruck OutPetition (ELRC, Nairobi)· [2021] KEELRC 1474 (KLR)

Catherine Kamau & 9 others v Speaker of the County Assemley of Nakuru Clerk Nakuru County Asembly & another [2021] KEELRC 1474 (KLR)

Employment and Labour Relations Court
27 January 2021
MMM. Mbaru
3,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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The Employment Court struck out nominated MCAs' claim for ward office funds because the dispute involved budget allocations, not employment.

What this practically means

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Executive summary

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Three nominated members of the Nakuru County Assembly filed a petition with a Notice of Motion dated 30 September 2020 seeking interim orders compelling the Speaker, Clerk and County Assembly of Nakuru to pay them Ksh.118,333 per month for personnel emoluments for three ward staff and operation and maintenance costs, as allegedly provided in circulars by the Commission on Revenue Allocation, and the arrears outstanding from 2017/2018. They alleged discrimination because elected MCAs received the full amount while they received Ksh.30,000 then Ksh.65,000 monthly. The respondents filed preliminary objections, later withdrawn on 23 October 2020, and a replying affidavit by the Clerk arguing that the funds are ward development funds governed by the Public Finance Management Act budgetary process, that CRA circulars are mere guidelines, that the petitioners participated in approving the budgets, and that unspent funds were returned to the national treasury. M. Mbaru J addressed jurisdiction sua sponte despite withdrawal of the objections, holding that there is no employer-employee relationship under section 12 of the ELRC Act and the dispute concerns ward development funds unrelated to employment and labour relations. Applying Anarita Karimi Njeru, the court also found the petition imprecise on the rights infringed, and held the petitioners, having approved the impugned budgets, could not claim discrimination. The petition was struck out with each party bearing its own costs.

Key legal issues

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01

Jurisdiction of the ELRC

Holding

The court lacked jurisdiction because the dispute concerned ward development funds approved by the County Assembly, not employment and labour relations

Reasoning

The court held there is no employment relationship contemplated under section 12 of the ELRC Act or Article 162(2). The dispute concerns allocation of ward development funds under a vote approved by the County Assembly, a matter governed by the Public Finance Management Act budgetary process, and is therefore outside the court's mandate.

p. 4
02

Precision in constitutional petitions

Holding

The petitioners failed to plead with reasonable precision the rights infringed and the manner of infringement

Reasoning

Applying Anarita Karimi Njeru, the court found the petitioners were not clear on the rights said to be infringed and did not demonstrate the nature of the discriminatory allegations, undermining the constitutional petition.

p. 4
03

Discrimination claim and the budgetary process

Holding

The petitioners, having participated in approving the budgets, cannot claim discrimination in the budgetary allocations

Reasoning

As MCAs the petitioners presided over the passing of the 2017/2018 to 2019/2020 budgets. Challenges to ward development allocations should be raised in the County Assembly and cannot be removed to the court by active participants in the process.

p. 5

Legal principles established

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  • Jurisdiction is not a matter of consent between the parties; a court without jurisdiction must stop proceedings
  • Specialised courts' jurisdiction to interpret and apply the Constitution is limited to issues arising within their assigned disputes

Court orders

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  1. 1.The petition is struck out for lack of jurisdiction
  2. 2.Each party shall bear own costs
Jurisdiction invoked
Articles 162(2) and 165 of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, 2011

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, "Catherine Kamau & 9 others v Speaker of the County Assemley of Nakuru Clerk Nakuru County Asembly & another [2021] KEELRC 1474 (KLR)", Case Analysis (2021). Petition (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1474/eng@2021-01-27

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