Ndirangu & 11 others v Teachers Service Commission & another (Employment and Labour Relations Cause 829 of 2022) [2023] KEELRC 1847 (KLR)
The bottom line
#Kenya's Employment Court struck out a petition over a staff medical scheme because the defendant wasn't an employer and grievances bypassed a required procurement review process.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over a party with no employment relationship with the petitioners
The court has no jurisdiction over the 2nd Respondent because section 12(2) of the ELRC Act limits parties to those in employment relationships or directly involved in labour relations, and the 2nd Respondent falls in neither category.
Section 12(2) restricts actors before the ELRC to employees, employers, trade unions, employers' organisations, federations, the Cabinet Secretary responsible for labour, and offices established under written law for such purposes. Applying ejusdem generis, the catch-all does not capture the 2nd Respondent, which has no employment relationship with the Petitioners and is not directly involved in employment and labour relations with respect to them.
Ripeness of the Petition vis-à-vis the Contract Implementation Team under section 151 of the PPAD Act
The Petition is premature because the quality-of-service grievances should first have been addressed through the Contract Implementation Team mechanism under section 151 of the PPAD Act.
The medical services contract is a procurement contract subject to the PPAD Act. Given the scale of the scheme (over 341,000 beneficiaries, about ten service providers, over 359 service points), it qualifies as a complex and specialized procurement contract whose implementation oversight falls to the Contract Implementation Team. The Petitioners provided no evidence they had invoked that mechanism, so the dispute was not ripe for litigation.
Whether the matter should be remitted to the High Court if the ELRC lacks jurisdiction
No. A matter before a court without jurisdiction cannot be transferred to a competent court because there is no competent suit capable of transfer.
Counsel for the Petitioners argued that, the matter having been transferred by the High Court, it should be returned there rather than struck out. The court held the authorities point the other way: jurisdiction goes to the root of the suit, and a null suit cannot be transferred. Consequently the Petition had to be struck out rather than remitted.
Legal principles established
#- The class of persons who may sue or be sued before the ELRC under section 12(2) of the ELRC Act is limited, and entities outside an employment relationship or the labour sector are excluded by the ejusdem generis canon
- A suit filed in a court without jurisdiction cannot be transferred to a court with jurisdiction because there is no competent suit capable of transfer
- Courts should decline to adjudicate disputes that are premature or unripe, particularly where statutory administrative mechanisms have not been exhausted
Court orders
#- 1.The Petition is struck out
- 2.No order for costs against the Petitioners, the transfer to the ELRC having been at the instance of the High Court
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Act; Article 162(2) Constitution (ELRC jurisdiction) - the court found it lacked jurisdiction under section 12(2) ELRC Act as against the 2nd Respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndirangu & 11 others v Teachers Service Commission & another (Employment and Labour Relations Cause 829 of 2022) [2023] KEELRC 1847 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1847/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.