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ELRCDismissedPetition No E058 of 2023· [2023] KEELRC 2311 (KLR)

Forum for Good Governance and Human Rights v Public Service Commission & 4 others; Central Organisation of Trade Unions (COTU-K) & 2 others (Interested Parties) (Employment and Labour Relations Petition E058 of 2023) [2023] KEELRC 2311 (KLR)

Employment and Labour Relations Court
29 September 2023
AMANNA N. MWAURE
1,950 words in judgment
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The bottom line

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Kenya's Employment and Labour Relations Court confirmed it can hear challenges to trade union laws, dismissing an attempt to throw out a petition over agency fees.

What this practically means

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Executive summary

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The 2nd, 3rd and 4th Respondents and the 3rd Interested Party filed a preliminary objection dated April 19, 2023 against the Petitioner's petition and notice of motion dated March 17, 2023, which challenged, among other things, the constitutionality of sections 49 and 54(6) of the Labour Relations Act concerning agency fees deducted from civil servants who are non-members of trade unions. The objectors argued that the ELRC lacked jurisdiction, that the Petitioner, an NGO, lacked locus standi to sue on behalf of civil servants and union members, that the suit was not public interest litigation, that it violated Article 41 and section 4 of the Labour Relations Act, and that it was an abuse of process. The Petitioner countered that the grounds were not pure points of law and that the ELRC is properly constituted under Article 162(2)(a) and section 12 of the ELRC Act to handle trade union matters. Applying the Mukisa Biscuits test and Peter Mungai, the court held the objections were multifaceted and required evidence, and therefore were not pure points of law. The court found it had jurisdiction over trade union matters and left all issues open for full hearing. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Jurisdiction of the ELRC to entertain a petition challenging the constitutionality of sections 49 and 54(6) of the Labour Relations Act

Holding

The court held it has jurisdiction under Article 162(2)(a) and section 12 of the ELRC Act as the matter concerns trade union matters

Reasoning

The Respondents argued that constitutional questions on the validity of statutes belong to the High Court, relying on Republic v Karisa Chengo. The court held that the ELRC is constitutionally constituted under Article 162(2)(a) and section 12 of the ELRC Act to handle trade union matters, and the petition raises issues arising from the Employment Act, Labour Institutions Act and Labour Relations Act, which fall within its jurisdiction.

p. 4
02

Whether the preliminary objection raised pure points of law

Holding

The objection failed because its grounds were multifaceted and required evidence

Reasoning

Applying the Mukisa Biscuits and Peter Mungai tests, the court found that the objections - on jurisdiction, locus standi, public interest litigation, violation of Article 41 and abuse of process - were not pure points of law and would require the adduction of evidence, defeating the requirements of a valid preliminary objection.

p. 4

Legal principles established

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  • A preliminary objection must consist of a pure point of law arising by clear implication out of the pleadings, capable of disposing of the suit
  • The ELRC has jurisdiction under Article 162(2)(a) and section 12 of the ELRC Act to handle trade union matters

Court orders

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  1. 1.The preliminary objection dated April 19, 2023 is found unmerited and is dismissed
  2. 2.Costs are ordered to be in the cause
  3. 3.Parties at liberty to move the court to full hearing

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 36, 41, 48, 159, 162(2)(a), 165(3)(b), (c) and (d), 258
  • Labour Relations Actsections 4, 14(1)(b)(i), 49, 54(1), 54(6)
  • Employment and Labour Relations Court Actsection 12
  • Employment Actnull
  • Labour Institutions Actnull
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2016Rule 7 (as incorporated in ELRC Procedure Rules)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B

Cases cited (3)

  • Republic V Karisa Chengo & 2 Others
    (2017) eKLR
  • Mukhisa biscuits Manufacturing Ltd vs West End Distributors
    1969 EA 696
  • Peter Mungai vs Joseph Naaba Kuria & Another, Leah Njeri Ndichu (interested party)
    2022 eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act

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, "Forum for Good Governance and Human Rights v Public Service Commission & 4 others; Central Organisation of Trade Unions (COTU-K) & 2 others (Interested Parties) (Employment and Labour Relations Petition E058 of 2023) [2023] KEELRC 2311 (KLR)", Case Analysis (2023). Petition No E058 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2311/eng@2023-09-29

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