Benjamin v Cabinet Secretary, Ministry of Information Communication and Digital Economy & 4 others; Juma & 60 others (Interested Party) (Petition E027 of 2023) [2023] KEELRC 1246 (KLR)
The bottom line
#Kenya's Employment Court ruled it cannot hear a challenge to the Media Council appointment process because the dispute has nothing to do with employment or labour relations.
What this practically means
#Executive summary
#Key legal issues
#Competency of the preliminary objection
The objection raises a pure point of law (jurisdiction) and meets the Mukisa Biscuits threshold.
Applying the classic test in Mukisa Biscuits, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Jurisdictional objections qualify. The objection here challenged the court's jurisdiction under section 12(1) of the ELRC Act, which is a pure point of law capable of disposing of the suit without ascertaining facts.
Whether the ELRC has jurisdiction over the petition challenging the Media Council selection panel
The court has no jurisdiction; the dispute is not an employment or labour relations matter.
Section 12(1) of the ELRC Act confines the court to disputes under Article 162(2) concerning employment and labour relations. Members of the Selection Panel are nominees appointed for a one-off task, and members of the Council are part-time board members; none are employees under contracts of service within section 2 of the Employment Act. The petition challenges actions of the Cabinet Secretary in an appointment process, which is not remotely connected to employment or labour relations, so the court must down its tools.
Sub judice / res judicata raised by Interested Parties
Not made out; no tangible material demonstrated infringement, and the issue had already been disposed of on 27th February 2023.
The Interested Parties argued the suit offended the sub judice rule given two similar High Court petitions. The court found no tangible material showing the res judicata rule was infringed or how the petitions related to this one. Further, the issue had been raised and disposed of in earlier proceedings on 27th February 2023, though the court observed the petitioner appeared to be forum shopping.
Legal principles established
#- Jurisdiction of the ELRC is confined to disputes relating to employment and labour relations; appointment of selection panel members and board members who are not employees falls outside it.
- The phrase 'connected purposes' in the ELRC Act preamble relates only to matters connected to employment and labour relations.
Court orders
#- 1.The Notice of Preliminary Objection dated 17th March 2023 is merited and is upheld
- 2.The Application and Petition dated 13th February 2023 are dismissed
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2) of the Constitution; Section 12(1) of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin v Cabinet Secretary, Ministry of Information Communication and Digital Economy & 4 others; Juma & 60 others (Interested Party) (Petition E027 of 2023) [2023] KEELRC 1246 (KLR)", Case Analysis (2023). Petition dated 13th February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1246/eng@2023-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.