Nubian Rights Forum v National Hospital Insurance Fund & another (Petition E024 of 2022) [2022] KEELRC 1382 (KLR)
The bottom line
#Kenya's Employment Court confirmed that human rights organizations can sue to protect workers' rights, even when they are not employees themselves.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner, a human rights organization, has locus standi to bring the petition before the ELRC
The petitioner has the requisite locus standi; its petition is anchored in articles 22 and 41 and 47 of the Constitution and constitutes public interest litigation
The court reasoned that articles 41 and 47 of the Constitution give anchor to parties such as the petitioner to raise constitutional issues relating to employment matters before the ELRC. The substratum of the petition concerns alleged violations of employees' rights of the 1st respondent, which falls within the core mandate of the court. A restrictive reading of section 12 of the ELRC Act confining suits to employers, employees and trade unions would fetter constitutional rights and is a misstep.
Whether the ELRC has jurisdiction to entertain the petition
The court has jurisdiction because the substratum of the petition relates to alleged violation of rights of employees of the 1st respondent, which is within the core mandate of the ELRC under article 162(2)(a)
The respondents argued the court lacked jurisdiction under section 12 of the ELRC Act because the petitioner is not an employee, trade union, employer's organization, federation, Registrar or Cabinet Secretary. The court held the jurisdictional argument flies in the face of articles 41 and 47 of the Constitution, and that disputes over recruitment and employment of public servants and related constitutional violations fall within the court's mandate.
Legal principles established
#- A public interest litigant, including a human rights organization, has locus standi to institute a petition before the ELRC raising employment and labour relations constitutional issues, even where it is not itself an employee, employer or trade union
- Section 12 of the ELRC Act cannot be interpreted so as to fetter constitutional rights in a public interest case before the court
Court orders
#- 1.The 1st and 2nd respondents' preliminary objection dated February 21, 2022 is dismissed
- 2.Costs of the preliminary objection awarded to the petitioner
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya; section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nubian Rights Forum v National Hospital Insurance Fund & another (Petition E024 of 2022) [2022] KEELRC 1382 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1382/eng@2022-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.