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ELRCDismissedNot stated in the extract provided· [2023] KEELRC 2064 (KLR)

Nyagah v Governor Nairobi City County & 4 others (Employment and Labour Relations Cause E135 of 2022) [2023] KEELRC 2064 (KLR)

Employment and Labour Relations Court
8 August 2023
AMANNA NGIBUINI MWAURE
954 words in judgment
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The bottom line

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Kenya's Employment Court dismissed attempts to block a petition challenging the removal of County Public Service Board members, allowing the main case to proceed to a full hearing.

What this practically means

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Executive summary

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The Employment and Labour Relations Court in Nairobi, per Anna Ngibuini Mwaure J, ruled on three similar preliminary objections raised by the 1st, 2nd and 5th interested parties (together with the 2nd respondent) in a petition apparently challenging attempts to remove members of the County Public Service Board. The objectors contended that the petition offended section 58(5) of the County Government Act as read with Article 251 of the Constitution, that removal of board members was the preserve of the County Assembly, and that the court was divested of jurisdiction, citing Attorney General & 2 Others vs Okiya Omtata Okoiti & 14 Others (2020) eKLR. The petitioner filed submissions in opposition. The court, applying International Centre of Insect Physiology and Ecology (ICIPE) vs Nancy Mcnally (2018) eKLR, reiterated that the ELRC is clothed with jurisdiction to hear and determine constitutional issues as and when they arise from employment and labour relations, as settled in USIU vs Attorney General and Daniel N Mugendi vs Kenyatta University. It held that a preliminary objection must be a pure point of law requiring no proof, but the points raised here required evidence to be adduced, including on the existence of an employer-employee relationship, and that the constitutional questions could only be resolved after hearing evidence. The court also noted that the 2nd respondent and 1st interested party's objection set out no grounds. All preliminary objections were dismissed and the main petition ordered to proceed to hearing, with costs in the cause. This is a ruling on preliminary objections, not the final judgment in the petition.

Key legal issues

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01

Jurisdiction of the ELRC over constitutional issues in employment disputes

Holding

The court held it has jurisdiction; the objection based on section 58(5) of the County Government Act and Article 251 was not a pure point of law

Reasoning

Relying on ICIPE vs Nancy Mcnally, the court noted the ELRC is clothed with jurisdiction to hear constitutional issues as and when they arise from employment and labour relations, as settled in USIU vs Attorney General and Mugendi vs Kenyatta University. The court also observed the matter touches constitutional issues that cannot be determined without evidence. The objections were premature and not merited.

p. 2
02

Whether the preliminary objections were pure points of law

Holding

The objections were not pure points of law since they required evidence, including on whether an employer-employee relationship existed

Reasoning

A preliminary objection must rest on points of pure law needing no proof. Here the respondents and interested parties asserted want of jurisdiction and abuse of process without specifying grounds; the court found the points raised required evidence to be adduced, and was not satisfied there was no employer-employee relationship. The objections were accordingly dismissed.

p. 3

Legal principles established

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  • A preliminary objection must be a point of pure law that does not require evidence to be adduced
  • The ELRC is clothed with jurisdiction to hear and determine constitutional issues arising from employment and labour relations

Court orders

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  1. 1.The preliminary objections raised by the respondents and interested parties are dismissed
  2. 2.The main petition to proceed for hearing
  3. 3.Costs will be in the cause

Authorities

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Legislation

  • County Government Actsection 58(5)
  • Constitution of Kenya, 2010Article 251(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Attorney General & 2 Others vs Okiya Omtata Okoiti & 14 Others
    (2020) eKLR
  • International Centre of Insect Physiology and Ecology (ICIPE) vs Nancy Mcnally
    (2018) eKLR
  • United States International University (USIU) vs Attorney General
    (2012)
  • Daniel N Mugendi vs Kenyatta University & 3 Others
    (2013)
Jurisdiction invoked
ELRC jurisdiction over constitutional issues arising from employment and labour relations, per International Centre of Insect Physiology and Ecology (ICIPE) vs Nancy Mcnally (2018) eKLR

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, "Nyagah v Governor Nairobi City County & 4 others (Employment and Labour Relations Cause E135 of 2022) [2023] KEELRC 2064 (KLR)", Case Analysis (2023). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2064/eng@2023-08-08

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