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ELRCAllowedJudicial Review Application No. E038 of 2023· [2024] KEELRC 2432 (KLR)

Said v Principal Secretary Ministry of Defence (Judicial Review Application 2 of 2024) [2024] KEELRC 2432 (KLR)

Employment and Labour Relations Court
3 October 2024
MNMathews Nderi Nduma
1,011 words in judgment
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The bottom line

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Kenya's Employment Court can enforce reinstatement orders even when issued by another court, and it ordered a soldier's reinstatement with full back-benefits.

What this practically means

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Executive summary

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This is a first-instance decision of the Employment and Labour Relations Court at Nairobi in execution proceedings arising from the Applicant's successful Criminal Appeal No. E144 of 2021 before the High Court Criminal Division. The Applicant had been convicted by a Court Martial in Court Martial No. 09 of 2021 on a count of committing a civil offence (use of narcotic drugs), sentenced to three years imprisonment, and automatically dismissed from the army. By judgment delivered on 19/10/2022, JM Bwonwong'a J quashed the outcome and ordered his reinstatement to the rank of Senior Private without loss of benefits. When the Respondent failed to comply, the Applicant moved the High Court by Judicial Review Application No. E038 of 2023 seeking mandamus, but that application was defeated by a successful preliminary objection. He then brought the present Motion dated 13/4/2023 before the ELRC. Nduma J reasoned that the reinstatement decree concerns employment and labour relations, a matter within the exclusive jurisdiction of the ELRC under Article 162(2) of the Constitution and section 12 of the ELRC Act, 2014, and that section 29 of the Civil Procedure Act permits execution by the court that would have jurisdiction to try the suit where the executing court lacks it. The Court allowed the Motion, issued mandamus compelling the Respondent to reinstate the Applicant as Senior Private without loss of benefits from 23/11/2021, awarded interest at court rates on the benefits due until payment in full, and awarded costs to the Applicant. Judgment dated 3 October 2024.

Key legal issues

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01

Jurisdiction of the ELRC over execution of a High Court Criminal Division decree of reinstatement

Holding

The ELRC has jurisdiction to execute the decree because the subject matter is employment within its exclusive domain under Article 162(2) and section 12 of the ELRC Act, applying section 29 of the Civil Procedure Act.

Reasoning

The Court reasoned that the reinstatement decree concerns employment and labour relations, a matter within the exclusive domain of the ELRC by virtue of Article 162(2)(a) of the Constitution and section 12 of the ELRC Act, 2014. Section 29 of the Civil Procedure Act extends execution to the court that would have jurisdiction to try the suit where the court of first instance lacks jurisdiction to execute. Relying on USIU v Attorney General and Daniel N Mugendi v Kenyatta University, the Court found itself competent to enforce the decree.

p. 3

Legal principles established

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  • Where a decree has been passed by a court that lacks jurisdiction to execute it, the court which would have jurisdiction to try such a suit may execute it; accordingly the ELRC, as the court with jurisdiction over employment disputes, may execute a decree of reinstatement of a serving member of the defence forces.

Court orders

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  1. 1.An order of mandamus is issued compelling the respondent to comply with the order of the High Court dated 19/10/22 to reinstate the Applicant to the position of Senior Private without loss of any benefits from the date of dismissal (23/11/21)
  2. 2.Interest at court rates on the benefits due to the Applicant till payment in full
  3. 3.Costs of this application to the Applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(1) and 162(2)
  • Employment and Labour Relations Court Actsections 4 and 12(1)
  • Civil Procedure Actsection 29
  • Narcotic Drugs and Psychotropic Substances (Control) Actsections 3(1) and 5(1)(a)
  • Kenya Defence Forces Actsections 133(1)(b) and 77(1)

Cases cited (3)

  • United States International University (USIU) versus The Hon Attorney General
    2012 Eklr
  • Gcaba v Minister of Safety and Security
  • Daniel N Mugendi versus Kenyatta University and 3 others
    2013 Eklr
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010 and section 12 of the Employment and Labour Relations Court Act, 2014, read with section 29 of the Civil Procedure Act 2010

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, "Said v Principal Secretary Ministry of Defence (Judicial Review Application 2 of 2024) [2024] KEELRC 2432 (KLR)", Case Analysis (2024). Judicial Review Application No. E038 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2432/eng@2024-10-03

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