Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutPetition No E166 of 2022· [2023] KEELRC 252 (KLR)

Okoiti v Parliamentary Service Commission & 2 others; Speaker of the National Assembly & another (Interested Parties) (Petition E166 of 2022) [2023] KEELRC 252 (KLR)

Employment and Labour Relations Court
7 February 2023
JGJACOB GAKERI
4,096 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court struck out a Senator's petition because he never first raised his workplace complaint internally with the Parliamentary Service Commission.

What this practically means

#

Executive summary

#
The court determined two Notices of Preliminary Objection dated 30th September 2022 filed by the 1st and 2nd Respondents challenging its jurisdiction to entertain a Petition and Notice of Motion dated 16th September 2022. The Petitioner, a Senator, challenged resolutions of the Parliamentary Service Commission varying the terms of engagement of the 2nd and 3rd Respondents from partisan contracts to non-partisan fixed term contracts renewable once. The Respondents argued the appointment of officers in the Parliamentary Service is the mandate of the PSC under Article 127(6) of the Constitution, that the Petitioner lacked locus standi, and that he had not exhausted internal mechanisms. The court first found the objections competent under the Mukisa Biscuit threshold as raising pure questions of law. On jurisdiction, it held that Section 12(1) of the Employment and Labour Relations Court Act is inexhaustible and that the ELRC may enforce constitutional rights ancillary to employment, so it had jurisdiction since the dispute involved employment. On exhaustion, however, the court found the Petitioner, as a Senator and member of the PSC, was obliged to raise his complaint with the Commission in writing and, if unsatisfied, in the Senate, before seeking judicial redress. His affidavit showed no such steps. Holding that courts should be the last line of defence, the court found the Petition and Notice of Motion unsustainable, struck them out, and ordered each party to bear their own costs.

Key legal issues

#
01

Competence of the preliminary objections

Holding

The objections met the Mukisa Biscuit threshold as they raised questions of law on jurisdiction.

Reasoning

The court applied the classic definition by Law JA in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors and the clarifications in John Musakali and Oraro v Mbaja that a preliminary objection must be a pure point of law not dependent on disputed facts. The objections raised jurisdiction, which is a question of law, so they were competent.

p. 4
02

Jurisdiction of the ELRC over the Petition

Holding

The court held it had subject-matter jurisdiction since the dispute involved employment matters within Article 162(2)(a) and Section 12 of the Act.

Reasoning

The court noted Section 12(1) uses the word 'including', making the list of disputes inexhaustive, and that the ELRC may enforce constitutional rights ancillary to employment per Mugendi and Cheruiyot. Because the Petitioner was challenging the exercise of PSC powers in relation to staff, the dispute involved employment and fell within the court's domain.

p. 7
03

Exhaustion of internal mechanisms

Holding

The Petitioner, a Senator and member of the Commission's parent institution, had not exhausted internal mechanisms; the court therefore declined to entertain the Petition for want of exhaustion.

Reasoning

The court held the doctrine of exhaustion, rooted in Article 159(2)(c) of the Constitution and elaborated in Communications Commission of Kenya and Ramogi, required the Petitioner to first raise his complaint with the Commission and, if necessary, the Senate. His affidavit showed no such steps, and courts should be the last line of defence.

p. 9

Legal principles established

#
  • A preliminary objection must consist of a point of law capable of disposing of the suit without ascertaining disputed facts.
  • The jurisdiction of the Employment and Labour Relations Court under Section 12(1) of the Act is not exhaustive; it extends to constitutional violations ancillary and incidental to employment and labour relations.
  • A litigant questioning a decision of a public body such as the Parliamentary Service Commission must first exhaust internal dispute resolution mechanisms before seeking judicial redress.

Court orders

#
  1. 1.The court lacks jurisdiction to entertain the Petition on account of the doctrine of exhaustion.
  2. 2.The Notice of Motion and Petition dated 16th September, 2022 are hereby struck out.
  3. 3.Parties to bear own costs.

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 127(1), (5), (6)(b), (6)(d); Article 162(2); Article 159(2)(c); Article 249(2); Article 117; Article 41; Article 48; Article 48; Article 162(2)(a)
  • Employment and Labour Relations Court Act, 2011Section 4, 5, 12(1), 12(2), 12(3)
  • Parliamentary Service Act, 2019Section 11(1)(b), Section 18, Second Schedule
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (18)

  • Attorney General & 2 others v Okiya Omtata Okoiti & 14 others
    (2020) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) 1 EA 696
  • Owners of the Motor Vessel “Lillians” v Caltex Oil Kenya Ltd
    (1989) 1 KLR
  • Samuel Kamau Macharia v Kenya Commercial Bank & 2 others
    (2011) eKLR
  • Public Service Commission and 4 others v Cheruiyot & 20 others (Consolidated)
    (2022) eKLR
  • Constitutional Petition No. 159 of 2018 Consolidated with Petition No. 201 of 2019
    (2020) eKLR
  • Olive Mwihaki Mugenda & another v Okiya Omtata Okoiti & 4 others
    (2016) eKLR
  • Judicial Service Commission v Gladys Boss Shollei & another
    (2014) eKLR
  • Kenya Council of Employment and Migration Agencies & another v Samuel Mwongera Arachi & 2 others
    (2015) eKLR
  • Allan Wanyonyi Wafula v County Government of Trans-Nzoia & another
    (2022) eKLR
  • John Musakali v Speaker County Assembly of Bungoma & 4 others
    (2015) eKLR
  • Oraro v Mbaja
    (2005) KLR 141
  • Mary Wambui Munene v Peter Gichuki Kingara & 6 others
    (2014) eKLR
  • Daniel N. Mugendi v Kenyatta University & 3 others
    (2013) eKLR
  • Jamlick Mureithi Mwendwa v Law Society of Kenya & 10 others
    unreported
  • Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others
    (2014) eKLR
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others, Muslim for Human Rights and 2 others (Interested Parties)
    (2020) eKLR
  • R v Independent Electoral and Boundaries Commission (I.E.B.C) Ex-Parte National Super Alliance (NASA), Kenya and 6 others
    (2017) eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya, 2010 and Section 12 of the Employment and Labour Relations Court Act, 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (8)

#

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, "Okoiti v Parliamentary Service Commission & 2 others; Speaker of the National Assembly & another (Interested Parties) (Petition E166 of 2022) [2023] KEELRC 252 (KLR)", Case Analysis (2023). Petition No E166 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/252/eng@2023-02-07

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