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ELRCStruck OutPetition dated 19th October 2023· [2024] KEELRC 470 (KLR)

Oreo v National Assembly & 2 others (Petition E199 of 2023) [2024] KEELRC 470 (KLR)

Employment and Labour Relations Court
27 February 2024
AMAnna Ngibuini Mwaure
1,200 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The petitioner filed a notice of motion and petition dated 19th October 2023 in the Employment and Labour Relations Court challenging the implementation of the Social Health Insurance Act 2023 and the Digital Health Act 2023. The 1st respondent filed a preliminary objection dated 26th October 2023 arguing that the court lacked jurisdiction under section 12(1) and (2) of the ELRC Act because no employment dispute or employer-employee relationship existed, that constitutional interpretation under Article 165(2)(d) was reserved for the High Court, and that the petition was sub judice, mirroring High Court Petition E413 of 2023 (Dominic Masinya Oreo v The National Assembly & Others) before Justice Chacha Mwita. The 2nd and 3rd respondents filed a similar preliminary objection dated 27th October 2023. On jurisdiction, the court applied the Supreme Court's decision in the consolidated Kenya Tea Growers Association petitions (delivered 21st February 2024), holding that, subject to the peculiar clauses of the two health statutes, the ELRC would equally have jurisdiction over their constitutional validity. On sub judice, however, the court found the petition was filed in two courts simultaneously, which constituted abuse of court process and a waste of judicial time, since Justice Chacha Mwita had already given directions. Both preliminary objections were allowed, the notice of motion and petition were struck out, and each party was ordered to bear its own costs. The ruling was delivered virtually in Nairobi on 27th February 2024.

Key legal issues

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01

Whether the ELRC has jurisdiction over the petition despite absence of an employer-employee relationship

Holding

The court held that subject to the peculiar clauses of the Social Health Insurance Act 2023 and the Digital Health Act 2023, the ELRC would have jurisdiction to determine their constitutional validity, following the Supreme Court's decision in the Kenya Tea Growers Association matter

Reasoning

The court relied on the Supreme Court judgment in Petition No 0004 of 2023 (consolidated with Petition 002 of 2023), Kenya Tea Growers Association & Others v National Social Security Fund Board of Trustees & Others, delivered 21st February 2024, where the apex court held that the ELRC has jurisdiction to determine the constitutional validity of the NSSF Act 2013. By analogy, the ELRC would equally have jurisdiction over the constitutional validity of the two health statutes, subject to their peculiar clauses.

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02

Whether the petition is sub judice and an abuse of court process

Holding

The petition was sub judice, being directly and substantially in issue before the High Court (Petition E413 of 2023, Justice Chacha Mwita), and its filing in two courts simultaneously constituted abuse of court process, warranting striking out

Reasoning

The same matter had been filed before the High Court where Justice Chacha Mwita had already given directions. The court held that filing the same cases in two different courts simultaneously is an abuse of court process and a waste of judicial time, and that in consequence the court lacked mandate to proceed with the application and petition dated 19th October 2023.

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Legal principles established

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  • Filing the same case in two different courts at the same time amounts to abuse of court process

Court orders

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  1. 1.The preliminary objections filed by the 1st respondent and the 2nd and 3rd respondents are allowed
  2. 2.The notice of motion and petition dated 19th October 2023 are struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(1) and (2)
  • Constitution of KenyaArticle 165(2)(d)
  • Constitution of KenyaArticle 162(2)(a)
  • Civil Procedure ActSection 6
  • Social Health Insurance Act
  • Digital Health Act
  • NSSF Act
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (4)

  • Dominic Masinya Oreo v The National Assembly & Others
    Constitutional Petition E413 of 2023
  • National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 Others
    Civil Appeal 656 of 2022 [2023] KECA 80 (KLR)
  • Kenya Tea Grower Association & Others v National Social Security Fund Board of Trustees & Others
    Petition No 0004 of 2023 consolidated with Petition 002 of 2023
  • Attorney General & 2 Others v Okiya Omtata Okoiti & 14 Others
    [2020] eKLR
Jurisdiction invoked
Section 12(1) and (2) of the Employment and Labour Relations Court Act, 2011; Article 162(2)(a) of the Constitution

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, "Oreo v National Assembly & 2 others (Petition E199 of 2023) [2024] KEELRC 470 (KLR)", Case Analysis (2024). Petition dated 19th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/470/eng@2024-02-27

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