Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition dated 22nd January 2020 (ELRC, Nairobi)· [2021] KEELRC 2282 (KLR)

Okiya Omtatah Okoiti v National Executive of the Republic of Kenya & 10 others; Capital Markets Authority (CMA) (Interested Party) [2021] KEELRC 2282 (KLR)

Employment and Labour Relations Court
22 January 2021
MOMaureen Onyango
5,100 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled it can hear a challenge to the appointment of the Capital Markets Authority board, clearing the case to proceed.

What this practically means

#

Executive summary

#
The 5th to 11th Respondents (the Objectors) lodged a preliminary objection dated 4th May 2020 seeking striking out of the Petitioner's petition challenging the appointment of the Chairman and board members of the Capital Markets Authority. They argued that the Employment and Labour Relations Court lacks jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act, that the petition raises pure questions of statutory and constitutional interpretation reserved for the High Court, and that the petition is sub judice given pending Civil Appeal No. 62 of 2019 before the Court of Appeal. The Petitioner opposed, relying on Article 41(1), 22, 27 and 47 and authorities establishing that the ELRC's jurisdiction extends to recruitment and appointment disputes over remunerated public offices and to enforcement of fundamental rights in employment-related disputes. The court framed three issues: jurisdiction, sub judice, and validity of the preliminary objection. Applying Samuel Kamau Macharia and the line of ELRC and High Court authorities, Maureen Onyango J held the court has jurisdiction because the dispute concerns recruitment to a remunerable position falling within the statutory definition of employment. On sub judice, the court found no evidence of the alleged pending appeal, noted the different parties and subject matter, and observed that the appeal had since been decided and was not relevant. The preliminary objection was dismissed with costs in the cause. The related application dated 10th August 2020 by the 1st to 4th Respondents seeking stay was held compromised by the ruling, and the parties were directed to proceed to the hearing of the substantive petition.

Key legal issues

#
01

Whether the ELRC has jurisdiction over a petition challenging the appointment of the Chairman and board members of the Capital Markets Authority

Holding

The court held it has jurisdiction; the dispute concerns recruitment to a remunerable position, and its jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act is not limited to employer-employee contract of service disputes.

Reasoning

Relying on Article 162(2)(a), Section 12 of the ELRC Act and Article 165(5), and on authorities including Republic v Clerk County Assembly of Baringo and Trusted Society of Human Rights Alliance v Nakuru Water, the court held that recruitment is an element of employment, office holders are employees with access to the court, and the court may enforce rights under Articles 22, 258 and 41(1) in employment-related disputes.

p. 7
02

Whether the petition is sub judice given the pending Civil Appeal No. 62 of 2019

Holding

The sub judice objection failed; no pleadings or evidence of the appeal were availed, the parties and subject matter differ, and the appeal has since been decided and is not relevant to this petition.

Reasoning

The court noted that apart from the Petitioner and the Attorney General, the parties in the Court of Appeal matter differ, the subject matter there concerned appointments to the National Land Commission whereas here it concerns the CMA Chairperson, and no pleadings were produced to establish the alleged parallel litigation.

p. 7
03

Whether the application dated 10th August 2020 by the 1st to 4th Respondents required separate determination

Holding

The application, which raised the same sub judice grounds, was compromised by the ruling and no further issues arose from it.

Reasoning

Having determined the identical sub judice issue in the preliminary objection, the court found the application overtaken by the ruling and directed the parties to proceed to the hearing of the substantive petition.

p. 8

Legal principles established

#
  • A court's jurisdiction flows from the Constitution or legislation and cannot be arrogated beyond what is conferred by law
  • The ELRC's jurisdiction extends to recruitment and appointment disputes concerning public offices whose holders are remunerated, and to enforcement of fundamental rights arising in employment and labour relations

Court orders

#
  1. 1.The preliminary objection dated 4th May 2020 is dismissed
  2. 2.Costs shall be in the cause
  3. 3.The application dated 10th August 2020 by the 1st to 4th Respondents seeking stay of proceedings is held to have been compromised by the ruling
  4. 4.Parties are directed to move to the hearing of the substantive issues in the Petition

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 165(5)
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Articles 27, 47, 132, 258
  • Constitution of Kenya, 2010Articles 159(2)(d), 48
  • Employment and Labour Relations Court ActSection 12
  • Capital Markets Act, Cap 485A Laws of KenyaSection 5(3)(a) & (b)
  • Employment Act, 2007Section 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21 Laws of Kenya)Section 1B

Cases cited (19)

  • Mukisa Biscuits Manufacturing Company Limited v West End Distributors Limited
    (1969) EA 696
  • John Mundia Njoroge & 9 others v Cecilia Muthonj Njoroge & Another
    [2016] eKLR
  • Kenya Council of Employment and Migration Agencies and Another v Samuel Mwongera Arachi and 2 Others
    (2015) eKLR
  • Republic v Karisa Chengo and 2 Others
    (2017) eKLR
  • USIU v Attorney General
    (2012) eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • Law Society of Kenya v Attorney General and Another
    (2019) eKLR
  • Samuel Kamau Macharia v KCB and 2 Others
    Supreme Court Civil Application No. 2 of 2011
  • Republic v Clerk County Assembly of Baringo ex parte William Kassait Kamket
    (2015) eKLR
  • Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company & Another
    (2013) eKLR
  • Nick Githinji Ndichu v Clerk Kiambu County Assembly and Another
    (2014) eKLR
  • Okiya Omtatah Okoiti v Kenyatta University Council and 4 Others
    Nairobi ELRC Pet No. 89 of 2015
  • Okiya Omtatah Okoiti v Attorney General & 2 others; Francis K. Muthaura (AMB) & 5 others (Interested Parties)
    [2019] eKLR
  • Oraro v Maja
    (2005) 1 KLR 141
  • Nancy MacNelly v ICIPE
  • Abdikadir Seleiman v County Government of Isiolo and Another
  • Okiya Omtatah Okoiti v National Executive of the Republic and 6 Others
  • Margaret Lorna Kariuki v Embu County Government
  • The Hon Attorney General v Okiyah Omtatah & 13 others
    Civil Appeal No. 62 of 2019
Jurisdiction invoked
Article 162(2)(a) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Okiya Omtatah Okoiti v National Executive of the Republic of Kenya & 10 others; Capital Markets Authority (CMA) (Interested Party) [2021] KEELRC 2282 (KLR)", Case Analysis (2021). Petition dated 22nd January 2020 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2282/eng@2021-01-22

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