Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissed· [2022] KEELRC 913 (KLR)

Kenya National Union of Nurses v Cabinet Secretary, Ministry of Public Service, Youth and Gender Affairs & 3 others [2022] KEELRC 913 (KLR)

Employment and Labour Relations Court
3 February 2022
JRJAMES RIKA
375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment and Labour Relations Court confirmed it can hear constitutional petitions about workplace rights, so employees challenging public service policies must file there.

What this practically means

#

Executive summary

#
The Petitioner petitioned the Employment and Labour Relations Court seeking a declaration that the Respondents' decision to introduce new performance measurement tools in the public service is unconstitutional, together with orders of certiorari to quash that decision and prohibition permanently barring its implementation. The Attorney-General filed a Notice of Preliminary Objection contending that only the High Court has jurisdiction over the dispute under Article 165(3)(d)(i) of the Constitution, and that the E&LRC's jurisdiction is confined by Section 12 of the Employment and Labour Relations Court Act. The parties agreed the objection would be determined by written submissions, which were confirmed filed on 4th November 2021. The court, per Rika J, held that there is a catena of judicial authorities establishing the E&LRC's jurisdiction in constitutional litigation relating to employment and labour relations, tracing the position to the Court of Appeal's decision in Daniel N. Mugendi v. Kenyatta University, which held that the High Court lacks jurisdiction over fundamental rights matters concerning employment and labour relations, those matters falling exclusively to the E&LRC under Article 165(5)(b). That holding has been consistently applied, including in Bernard Odero Okello. Since the petition involves employment in the public service, the Public Service Commission, the National Employment Authority and performance measurement tools, the court found no reason to deny its jurisdiction. The preliminary objection was declared without merit and declined, with no order as to costs.

Key legal issues

#
01

Whether the E&LRC, rather than the High Court, has jurisdiction over a petition challenging performance measurement tools in the public service

Holding

The preliminary objection fails; the E&LRC has jurisdiction over the petition as it involves employment in the public service.

Reasoning

Relying on a line of authority beginning with the Court of Appeal's decision in Daniel N. Mugendi v. Kenyatta University, the court held that matters relating to fundamental rights in employment and labour relations fall exclusively within the E&LRC's jurisdiction under Article 165(5)(b). That jurisprudence has been consistently applied, including in Bernard Odero Okello. The petition involves public service employment, the Public Service Commission, the National Employment Authority and performance measurement tools, squarely engaging the E&LRC's mandate.

p. 1

Legal principles established

#
  • The E&LRC has exclusive jurisdiction over constitutional litigation concerning fundamental rights in employment and labour relations matters.

Court orders

#
  1. 1.The Preliminary Objection has no merit and is declined
  2. 2.No order on the costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 165(3)(d)(i)
  • Constitution of Kenya, 2010Article 165(5)(b)
  • Employment and Labour Relations Court ActSection 12

Cases cited (2)

  • Daniel N. Mugendi v. Kenyatta University & 3 Others
    [2013] e-KLR
  • Bernard Odero Okello & Another v. Cabinet Secretary for Industrialization & Others
    [2020] e-KLR
Jurisdiction invoked
Article 162(2) and Article 165(5)(b) of the Constitution read with Section 12 of the Employment and Labour Relations Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Union of Nurses v Cabinet Secretary, Ministry of Public Service, Youth and Gender Affairs & 3 others [2022] KEELRC 913 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/913/eng@2022-02-03

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