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ELRCDismissedELRC Petition (Nyeri) E006 of 2023· [2024] KEELRC 1872 (KLR)

Mwangi & another v Speaker, County Assembly of Laikipia & another (Petition E019 of 2023) [2024] KEELRC 1872 (KLR)

Employment and Labour Relations Court
19 July 2024
OMONESMUS N MAKAU
4,280 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled it can hear challenges to the creation of public jobs even before anyone is hired, and residents can sue.

What this practically means

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Executive summary

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The 1st petitioner, a resident of Kinamba in Laikipia County, and the 2nd petitioner, a community-based organization based in Nanyuki, petitioned the ELRC at Nyeri challenging the decision of the 2nd respondent to establish and advertise the new office of Deputy Clerk Administrative Services of the Laikipia County Assembly. They sought declarations that the establishment and advertisement were unconstitutional for contravening the County Governments Act, the County Assembly Services Act and the Constitution, and orders of mandamus to quash those decisions, contending that no organizational structure review preceded the creation of the post and that the rights of residents to fair administrative action were violated. The respondents filed a notice of preliminary objection on 18th January 2024, contending that the court lacked jurisdiction because no employer-employee relationship existed, that the petition offended section 12 of the ELRC Act, and that the suit was an abuse of process. The objection was disposed of by written submissions. The court framed three issues: jurisdiction, locus standi, and the merits of the objection. Relying principally on the Supreme Court's decision in Kenya Tea Growers Association v NSSF Board of Trustees, the court held that the jurisdiction of the ELRC is not confined to employer-employee relationships but extends to disputes relating to employment and labour relations in the widest sense, the word 'including' in section 12(1) of the ELRC Act being non-exhaustive. The dispute over creation and recruitment to the office related to employment and labour relations, and the court was clothed with jurisdiction under Articles 162(2)(a), 165(3)(d)(ii) & (5) of the Constitution. On standing, Articles 22 and 258 of the Constitution confer an enlarged locus standi, and the petitioners could sue on their own behalf and for the residents of Laikipia County; the second petitioner's lack of corporate status did not defeat standing. The preliminary objection was dismissed with costs on 19th July 2024, delivered virtually via Teams with the parties' consent.

Key legal issues

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01

Whether the ELRC has jurisdiction over a petition challenging the establishment and advertisement of a public office where no employment relationship yet exists

Holding

The court has jurisdiction because the dispute relates to employment and labour relations in the expanded meaning, notwithstanding that no employer-employee relationship has been created.

Reasoning

Relying on the Supreme Court's decision in Kenya Tea Growers Association v NSSF Board of Trustees, the court held that the word 'including' in section 12(1) of the ELRC Act renders the list of disputes non-exhaustive. The dispute over creation and filling of the office of Deputy Clerk Administrative Services concerns employment processes leading to an employment relationship, and respondents are sued in their capacity as employer or statutory office. Articles 162(2)(a) and 165(3)(d)(ii) & (5) clothe the court with jurisdiction.

p. 8
02

Whether the petitioners, a resident and a non-corporate community organization, have locus standi

Holding

The petitioners have locus standi under Articles 22 and 258 of the Constitution, acting in their own interest and in the public interest on behalf of residents of Laikipia County.

Reasoning

Article 22 permits proceedings by a person acting on behalf of another who cannot act in their own name, in the interest of a group or class of persons, or in the public interest. Article 258 extends the same standing to claims of constitutional contravention. The standing is not lost merely because the second petitioner is not a body corporate, consistent with Mumo Matemu v Trusted Society of Human Rights Alliance.

p. 9

Legal principles established

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  • The ELRC's jurisdiction is not confined to employer-employee relationships but extends to disputes relating to employment and labour relations in their widest sense; the word 'including' in section 12(1) of the ELRC Act makes the listed disputes non-exhaustive.
  • The ELRC may determine constitutional questions, including constitutionality of decisions or statutes, where they arise in the context of employment and labour relations.
  • Locus standi under Articles 22 and 258 of the Constitution is enlarged and does not depend on registration or corporate status.

Court orders

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  1. 1.The respondents' preliminary objection dated 18th January 2024 is dismissed with costs
Jurisdiction invoked
Articles 162(2)(a), 165(3)(d)(ii) & (5) of the Constitution and sections 12(1) & (2) 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, "Mwangi & another v Speaker, County Assembly of Laikipia & another (Petition E019 of 2023) [2024] KEELRC 1872 (KLR)", Case Analysis (2024). ELRC Petition (Nyeri) E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1872/eng@2024-07-19

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