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ELRCPartially AllowedConstitutional Petition (ELRC) - reliefs set out in paragraph 9 of the judgment· [2023] KEELRC 2538 (KLR)

Mwangi v Attorney General & 2 others (Petition E163 of 2022) [2023] KEELRC 2538 (KLR)

Employment and Labour Relations Court
19 October 2023
BMB. O. M. Manani
2,049 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court can hear a former Permanent Secretary's claim against the Government as his employer, but corruption investigators and prosecutors must be sued separately in the High Court.

What this practically means

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Executive summary

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The Petitioner, formerly Permanent Secretary in the Ministry of Foreign Affairs, was charged under the Anti-Corruption and Economic Crimes Act over the purchase of property in Japan to house Kenya's Embassy. Earlier Constitutional Petitions Nos. 153 and 369 of 2013, seeking to bar the trial, were dismissed, and after a full trial the Petitioner was acquitted. He then filed this Petition seeking declarations that his rights were breached, damages, unpaid salary and benefits up to his expected retirement on 14th April 2023, costs and interest, blaming the Respondents for a flawed prosecution that cost him his job. The Respondents raised a two-pronged preliminary objection: lack of jurisdiction for want of an employment relationship with the 2nd and 3rd Respondents, and res judicata based on the earlier Petitions. The court held that the earlier Petitions challenged the right to prosecute, while this Petition, arising after the acquittal, presents a distinct cause of action and is not res judicata. On jurisdiction, the court held the 2nd and 3rd Respondents are neither the Petitioner's employer nor entities falling within section 12 of the ELRC Act, so the action against them was struck out with costs; they must be sued in the High Court. However, the Petition is properly before the ELRC against the 1st Respondent as legal representative of the Petitioner's employer, and the case against the 1st Respondent was sustained. There was no order as to costs on the dismissed res judicata objection.

Key legal issues

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01

Jurisdiction over the 2nd and 3rd Respondents

Holding

The ELRC lacks jurisdiction over constitutional claims against bodies with which the Petitioner has no employment relationship

Reasoning

The 2nd and 3rd Respondents are neither the Petitioner's employer nor institutions against whom action may be brought before the ELRC under section 12 of the ELRC Act. Although their decisions impacted the Petitioner's employment rights, the narrow reading of section 12 means the Petitioner must seek appropriate relief against them in the High Court. The Petitioner must split the dispute between the two courts.

p. 3
02

Res judicata

Holding

The Petition is not res judicata as the cause of action is materially distinct from Constitutional Petitions Nos. 153 and 369 of 2013

Reasoning

The earlier Petitions challenged the legitimacy of mounting the criminal trial; the present Petition, filed after the Petitioner was acquitted, seeks compensation for loss of employment and violation of rights arising from the now-collapsed trial. The later issues could not have been raised in the earlier concluded suits, so the doctrine of res judicata does not apply.

p. 4
03

Petition against the 1st Respondent

Holding

The Petition is properly filed against the 1st Respondent as legal representative of the Petitioner's employer

Reasoning

Since part of the grievances concern violation of the right to fair labour practice by the 1st Respondent's principal, the Government of Kenya, which was the Petitioner's employer, the dispute qualifies as an employer-employee dispute properly before the ELRC, and the High Court would decline jurisdiction on that claim.

p. 4

Legal principles established

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  • Once a court is alerted of a challenge to its jurisdiction, it has a duty to investigate it even if not raised by the parties
  • The word 'including' in section 12 of the ELRC Act extends jurisdiction only to disputes ancillary or incidental to matters contemplated under section 12(1)

Court orders

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  1. 1.The action as relates to the 2nd and 3rd Respondents is struck out with costs to them
  2. 2.The case between the Petitioner and the 1st Respondent is sustained
  3. 3.The preliminary objection founded on the doctrine of res judicata is dismissed
  4. 4.There is no order as to costs on the res judicata limb

Authorities

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Legislation

  • Anti-Corruption and Economic Crimes Actsection 62
  • Employment and Labour Relations Court Actsection 12, section 12(1)
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • John K. Malembi v Trufosa Cheredi Mudembei & 2 others
    [2019] eKLR
  • National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656 of 2022)
    [2023] KECA 80 (KLR)
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act (ELRC 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, "Mwangi v Attorney General & 2 others (Petition E163 of 2022) [2023] KEELRC 2538 (KLR)", Case Analysis (2023). Constitutional Petition (ELRC) - reliefs set out in paragraph 9 of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2538/eng@2023-10-19

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