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ELRCOtherPetition dated 13th February 2023· [2023] KEELRC 1246 (KLR)

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)

Employment and Labour Relations Court
23 May 2023
5,075 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st and 5th Respondents raised a preliminary objection dated 17th March 2023 against a petition dated 13th February 2023 challenging the constitution of the Selection Panel and the appointment process for the Chairperson and members of the Media Council of Kenya initiated by the Cabinet Secretary under the Media Council Act, 2013. The Respondents and Interested Parties argued the ELRC lacked jurisdiction under section 12(1) of the Employment and Labour Relations Court Act because the selection panel members, nominees and shortlisted candidates are not employees under section 2 of the Employment Act, 2007, and relied on the Court of Appeal decision in Rift Valley Water Services Board v Geoffrey Asanyo. The Interested Parties additionally urged sub judice given two parallel High Court petitions. The Petitioner relied on Magare Gikenyi v Ministry of Labour and the 'connected purposes' phrase in the Act's preamble, and asserted locus standi as a concerned citizen. Relying on Mukisa Biscuits and Owners of Motor Vessel 'Lilian S', Gakeri J found the objection was a competent pure point of law. The court held that neither the Selection Panel members nor Council members are employees under contracts of service, that the petition concerns an appointment process rather than employment or labour relations, and that 'connected purposes' does not expand jurisdiction beyond employment-related matters. The preliminary objection was upheld, the petition and application dismissed, with each party bearing their own costs as a public interest matter. The sub judice claim failed for lack of material, though the court noted apparent forum shopping.

Key legal issues

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01

Competency of the preliminary objection

Holding

The objection raises a pure point of law (jurisdiction) and meets the Mukisa Biscuits threshold.

Reasoning

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.

p. 5
02

Whether the ELRC has jurisdiction over the petition challenging the Media Council selection panel

Holding

The court has no jurisdiction; the dispute is not an employment or labour relations matter.

Reasoning

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.

p. 8
03

Sub judice / res judicata raised by Interested Parties

Holding

Not made out; no tangible material demonstrated infringement, and the issue had already been disposed of on 27th February 2023.

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 17th March 2023 is merited and is upheld
  2. 2.The Application and Petition dated 13th February 2023 are dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 3, 22, 23, 41, 48, 159, 162(2), 162(3), 165(6)
  • Employment and Labour Relations Court ActSection 12(1); preamble
  • Employment Act, 2007Section 2
  • Media Council Act, 2013Sections 2, 3, 7(2), 7(3), 7(15), 8, 12; First Schedule
  • Civil Procedure ActSection 6; Section 1B
  • State Corporations Act, 1986Section 2
  • Capital Markets Act
  • Controller of Budget Act, 2016
  • Accountants Act, 2008
  • Anti-Doping Act, 2016
  • Work Injury Benefits Act, 2007
  • Retirement Benefits Act, 1997
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (15)

  • Rift Valley Water Services Board & 3 others v Geoffrey Asanyo & 2 others
    Civil Appeal No. 61 of 2015 (2022) eKLR
  • McMillan v Guest
    (1942) AC p.561
  • Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited
    [1989] KLR
  • National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others
    (2023) KECA 80 KLR
  • Attorney General & 2 others v Okiya Omutata Okoiti & 14 others
    (2020) eKLR
  • USIU v Attorney General & 12 others
    (2012) eKLR
  • Daniel N. Mugendi v Kenyatta University & 3 Others
    (2013) eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 others
  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
    (1969) EA 696
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Magare Gikenyi J. Benjamin v Ministry of Labour (MoL & another; Federation of Kenyan Employers (FKE) & 4 others (Interested Party)
    [2022] eKLR
  • James Gacheru & 3 others v Kiambu Water & Sewerage Co. Ltd and 13 others
    Petition No. E029 of 2022
  • Katiba Institute & another v Attorney General & another; Julius Waweru Karangi and 128 others (Interested Party)
    (2021) eKLR
  • Fredrick Otieno Outa v Jared Odoyo Okello & 4 others
    (2014) eKLR
  • Gcaba v Minister of Safety and Security
Jurisdiction invoked
Article 162(2) of the Constitution; Section 12(1) of the Employment and Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.