Mboya v Pharmacy and Poisons Board & 3 others (Petition E030 of 2023) [2023] KEELRC 1042 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can hear challenges to public office appointments, even when filed by a member of the public with no personal job dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether absence of an employer-employee relationship ousts the ELRC's jurisdiction
No; where the dominant cause of action is employment related, the ELRC has jurisdiction, and the enumeration of disputing parties in section 12(1) of the ELRC Act does not limit article 162(2)(a) jurisdiction.
The court read article 162(2)(a) together with section 12(1) of the Employment and Labour Relations Court Act and held that the constitutional grant of jurisdiction over employment and labour relations disputes is wide and cannot be confined by the statutory naming of parties. The subject of the petition was appointment to an office in the public service, which is an employment matter, so lack of a direct employment relationship with the petitioner does not oust jurisdiction, particularly where the petition is brought under articles 22 and 258.
Whether the dispute is one of directorship/leadership reserved for the High Court
No; the subject of the petition is appointment to an office in the public service, which is an employment matter within the ELRC's jurisdiction.
The 1st respondent argued that the dispute concerned leadership or membership of the 1st respondent and was a question of directorship for the High Court. The court rejected this characterisation, holding that the subject matter of the Petition and Notice of Motion is the appointment of the 3rd respondent to an office in the public service, which is clearly an employment matter falling within the Court's jurisdiction under article 162(2)(a).
Legal principles established
#- Jurisdiction over matters where the dominant cause of action is employment related resides in the Employment and Labour Relations Court, and the naming of parties under section 12 of the ELRC Act cannot limit the wide jurisdiction granted by article 162(2)(a).
- Any person, including one acting in the public interest, may institute proceedings claiming violation of the Bill of Rights or contravention of the Constitution under articles 22 and 258.
Court orders
#- 1.The 1st respondent's Preliminary Objection is overruled with costs in the Petition
- 2.The parties are directed to fix the petitioner's Notice of Motion for hearing on priority basis
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution; section 12(1) of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mboya v Pharmacy and Poisons Board & 3 others (Petition E030 of 2023) [2023] KEELRC 1042 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1042/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.