Suleiman v County Government of Isiolo & another (Cause 76 of 2015) [2015] KEELRC 1521 (KLR)

County Government - employment disputes - disciplinary matters - appeal to the Public Service Commission procedure to be followed under section 77 of the County Governments Act, 2012 - where the appeal process dealt with the merits or substance of the case and not procedural or legal propriety of the case - whether section 77 of the County Governments Act, 2012 ousted or restricted the jurisdiction of the Court where a party had not appealed to the Public Service Commission - County Governments Act, 2012, section 77. Brief facts The Claimant filed the memorandum of claim and prayed for judgment against the Respondent for an order of reinstatement into the Claimants position of employment, a declaration that the act of relieving him from his duties was a breach of his constitutional right under article 27, 28, 41 and 50 of Constitution of Kenya, general damages for wrongful dismissal, Kshs 5,198,000.00 being dues payable to the Claimant and costs and interests. The 1st and 2nd Respondents filed together with the memorandum of response the notice of preliminary objection praying that the claim be dismissed with costs and pleaded that any person afiected by the decision of the County Public Service Board or a person exercising disciplinary control over a public oficer in the County Government was required to appeal to the Public Service Commission as provided for in section 77 ofthe County Governments Act, 2012. Thus, it was urged for the Respondents that section 77 of the Act restricted and ousted the jurisdiction of the Court. It was submitted for the Respondent that section 77(1) used the word “may” suggesting that the Claimants had an option to appeal to the Commission or take such other legitimate action such as filing the present suit and that the Claimant was questioning the illegal decision by the Governor which could only be handled and resolved by the Court and not the Commission. Issues i. Whether section 77 of the County Governments Act, 2012, which provided that any person afiected by the decision of the County Public Service Board or a person exercising disciplinary control over a public oficer in the County Government was required to appeal to the Public Service Commission ousted the jurisdiction of the Court where a party had not appealed, to the Public Service Commission. ii. Whether the Employment and Labour Relations Court had jurisdiction to entertain and determine claims of breach of fundamental rights under articles 22 and 23 or enforcement of the Constitution under article 258 of the Constitution as pertaining to employment and labour relations matters. Relevant provisions of the Law Constitution of Kenya, 2010 Article 22 (1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by(a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members. (3) The Chief Justice shall make rules providing for the Court proceedings referred to in this Article, which shall satisfy the criteria that(a) the rights of standing provided for in clause (2) are fully facilitated; (b) formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation; (c) no fee may be charged for commencing the proceedings; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 2

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(d) the Court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and (e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the Court. (4) The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this article, and to have the matter heard and determined by a court. Article 23 (1) The High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. (2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. (3) In any proceedings brought under article 22, a Court may grant appropriate relief, including(a) a declaration of rights; (b) an injunction; (c) a conservatory order; (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under article 24; (e) an order for compensation; and (f ) an order of judicial review. Article 159(1),(2)(b) (1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles(b) justice shall not be delayed; Article 162(2)(a) (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating fcfa) employment and labour relations; and Article 165(5)(6) (5) The High Court shall not have jurisdiction in respect of matters(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the Courts contemplated in article 162(2). (6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. Article 234(2)(a)(i) (2) The Commission shall(a) subject to this Constitution and legislation(i) establish and abolish offices in the public service; and Article 258 (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention. (2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by(a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 3

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(c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members. County Governments Act, 2012 Section 76 (1) In exercising its disciplinary powers, the County Public Service Board shall observe the principles of natural justice. (2) No public officer may be punished in a manner contrary to any provision of the Constitution or any Act of Parliament. (3) Nothing in this section shall limit the powers conferred on the county government or any other lawful authority discharging a disciplinary function from retiring an officer from the county public service on the ground of public interest. (4) In this section, retirement on the ground of public interest may be imposed instead of any other punishment if the decision maker considers that although the misconduct has been proven(a) the officer has nevertheless raised a mitigation factor that renders imposition of a punishment too harsh in view of the circumstances of the case; or (b) the length of service benefits accrued and previous good record ofthe officer justifies the retirement; or (c) imposing a punishment against the officer is likely to adversely affect the reputation of the public body concerned or the county public service generally. (5) If criminal proceedings are instituted against a county public officer, disciplinary proceedings against the officer for dismissal or imposition of any other punishment on any grounds involved in the criminal charge shall not be taken until the conclusion of the criminal proceedings and the determination of any appeal therefrom has been made. (6) Nothing in subsection (5) shall be interpreted as prohibiting or restricting the power of the county government or the concerned county chief officer or other lawful authority to interdict or suspend or take any interlocutory decision against the public officer. Section 77 1. Any person dissatisfied or affected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public officer may appeal to the Public Service Commission( in this part referred to as the “Commission”) against the decision. 2. The Commission shall entertain appeals on any decision relating to employment of a person in a county government including a decision in respect ofa. recruitment, selection, appointment and qualifications attached to any office; b. remuneration and terms of service; c. disciplinary control; d. national values and principles of governance under article 10, and values and principles of public service under article 232 of the Constitution; e. retirement and other removal from office; f. pension benefits, gratuity and any other terminal benefits; or g. any other decision the Commission considers to fall within its constitutional competence to hear and determine on appeal in that regard. 3. An appeal under subsection (1) shall be in writing and made within ninety days after the date of the decision, but the Commission may entertain an appeal later if, in the opinion of Commission,the circumstances warrant it. 4. The Commission shall not entertain an appeal more than once in respect of one decision. 5. Any person dissatisfied or affected by a decision made by the Commission on appeal in a decision made in a disciplinary case may apply for review and the Commission may admit the application if- https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 4

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a. the Commission is satisfied that that there appear in the application new and material facts which might have affected its earlier decision, and if adequate reasons for the non-disclosure of such facts at an earlier date are given; or b. there is an error apparent on record of either decision. 6. An application for review under subsection (5) shall be in writing and made within the time prescribed by the Commission in regulations governing disciplinary proceedings, but the Commission may entertain an application for review later if, in the Opinion of the Commission, the circumstances warrant it. Held 1. Article 234(2)(i) of the Constitution provided that the Public Service Commission was vested with the function and power to hear and determine appeals in respect of County Governments’ public service. Article 262 defined public service to mean the collectivity of all individuals, other than state oficers, performing a function within a state organ. 2. The power of the Commission to hear and determine appeals in respect of the County Governments’ public service constitutionally applied only to public oficers, and not state oficers, in the service of the County Governments or any other state organ. 3. Section 77 of the County Governments Act, 2012 amplified and brought into operation article 234(2) (i) of the Constitution. In considering the constitutional and statutory provisions that empowered the Commission to hear and determine appeals in respect of the County Governments’ public service, the subject matter was set out in section 77 of the Act but the decisions the Commission could make were not set out in the Act or the Constitution. 4. Regarding appeals to the Commission, the Commission could only make decisions that the County Public Service Board or relevant lawful authority could have made or vary such decision by simply setting it aside or making a decision that was in the Board’s or the other relevant lawful authority’s jurisdiction to make. 5. On appeal, the appellate authority applied the same substantive law and facts as applied by the primary authority that made the decision appealed against and generally considered facts as they were presented before the primary authority so that an appellate authority, in absence of anything else, could only set aside the decision appealed against or substitute the decision with any of the remedies that the primary authority was empowered to make. In other words, the appeal process dealt with the merits or substance of the case and not procedural or legal propriety of the case. 6. In disciplinary matters, section 76 of the County Governments Act, 2012 was elaborate that punishment contrary to the Constitution could not be imposed against a public oficer. The section provided that the rules of natural justice must be observed, and the punishment could not be contrary to provisions of the Constitution and Acts of Parliament. 7. The legitimacy of the procedure or punishment imposed as measured against section 76 of the Act would be an issue of law and therefore not appealable to the Commission but subject to the jurisdiction of the Court. 8. It was not for the County Public Service Board or the person exercising disciplinary control in the County Government, as the case could be, to determine a dispute as to its or person’s compliance with section 76 of the Act, and similarly, the Commission would not have jurisdiction to decide such issue on appeal, which essentially would not be conceivable as a matter of a primary decision and therefore subject to the Commission’s appellate jurisdiction under section 77 of the Act. 9. While making its primary decisions or decisions on appeals, the Commission like any other state organ or person under article 10 of the Constitution, had to care and ask itself whether the decision was lawful or legitimate in view of relevant constitutional and statutory provisions, but the original and unlimited jurisdiction to make a finding on legitimacy or lawfulness of decisions rested with the Court as vested with the appropriate jurisdiction under article 162(2)(a) as read with article 165(5) and (6) of the Constitution; article 22(1), and section 12 of the Employment and Labour Relations Act, 2011. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 5

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10. 11. 12. 13. 14. 15. 16. 17. 18. 19. The jurisdiction to determine a dispute as to a person’s compliance with section 76 of the County Governments Act and to make a primary conclusive finding thereon was vested in the Court and the Commission did not enjoy constitutional or statutory jurisdiction to determine that issue and to make appropriate remedy. The line was thin but clearly set apart matters that could go to the Commission as of necessity in the first instance and those that could be argued before the Court as of first instance without having to go through the Commission by reason of exhausting the prescribed alternative and statutory procedure and remedy. Legitimacy or lawfulness of decisions was not one of the listed appealable subject matters under section 77 of the County Governments Act and it had not been shown that such would be a matter in the constitutional or statutory competence of the Commission to decide. The Constitution or legislation could provide that a person or public body or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions or powers as vested in the person or authority or public body by the Constitution or legislation. The Constitution or legislation may also vest in a person or authority or public body the power or function to consider or entertain given disputes or matters as of first instance or on appeal and to render decisions in that regard in accordance with the prescribed procedures. Such constitutional and legislative provisions should not be construed as precluding a court from exercising the relevant jurisdiction in relation to any question whether that person or authority or public body had exercised the powers or functions in accordance with the Constitution or any other law. The legal provisions did not oust or extinguish or adjourn the Court’s jurisdiction to hear and determine a dispute about the legality or the manner of the exercise of the constitutional or statutory powers and functions by the relevant person, public body or authority as may have been vested in the person, public body or authority under the Constitution or statute. In exercise of judicial authority, the purpose and principles of the Constitution were protected and promoted. Judicial authority is vested in the judiciary. Issues of legality of actions or omissions were the immediate and proper primary or original province and jurisdiction of the court and not the penultimate or initially ceded jurisdiction of persons, public bodies and authorities outside the Judiciary. There were no established time lines for appealing and making of the decision by the Commission and the likely consequence was that the claimant could be subjected to irreparable harm such as rendering the cause of action to challenge the alleged illegality time barred. Looking at the alleged claims of illegality, unconstitutionality, breach of constitutional rights and the remedies as prayed for, it was dificult to find that the cited alternative procedure and remedy under section 77 of the County Government Act was available to the claimant. Even if it was said that it was a case of mixed jurisdiction of the Commission and the Court, the legitimate path was to invoke the Court’s jurisdiction to hear and determine the intertwined issues, that being the most eficient and efiective manner of disposing the dispute. Section 77 of the County Government Act, did not oust or restrict the jurisdiction of the Court for want of exhaustion of the procedure and remedies envisaged under the section. The Employment and Labour Relations Court (ELRC) enjoyed the jurisdiction to hear and determine employment and labour relations matters alongside claims of fundamental rights (and enforcement of constitutional and statutory provisions) ancillary and incidental to those matters. By being of equal status, the High Court therefore did not have the jurisdiction to superintend, supervise, direct, guide, shepherd, and or review the mistakes, real or perceived, of the ELRC and Environment and Land Court (ELC) administratively or judiciously as was the case in the past and vice versa, the ELRC and ELC were not the High Court. However, status was not the same thing as jurisdiction. The Constitution though did not define ‘status'. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 6

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20. The ELRC and ELC exercised the same powers as the High Court in performance of its judicial function, in its specialized jurisdiction but they were not the High Court. 21. The original and unlimited jurisdiction to make a finding on legitimacy or lawfulness of decisions in disputes between employers and employees rested with the ELRC as vested with the appropriate jurisdiction under articles 159(1), 162(2)(a) as read with article 165(5) and (6) of the Constitution; articles 22(1) and 258(1) of the Constitution, and the provisions of the Employment and Labour Relations Act, 2011. 22. The jurisdiction spread to all issues in the employment relationship and related to matters including the enforcement of the fundamental rights and freedoms under article 22 of the Constitution and enforcement of the Constitution under article 258 as far as the issues in dispute evolved, revolved or related to employment and labour relations. 23. The compass or golden test for the Court's jurisdiction was the subject matter in the dispute namely disputes relating to employment and labour relations as provided for under article 162(2)(a) of the Constitution and as amplified in the Employment and Labour Relations Act, 2011 and not the remedies sought or the procedure of moving the court or the situ of the applicable law or any other extraneous considerations as may be advanced by or for a litigant. Preliminary objection dismissed with costs. Citations East Africa 1. Akelerio, James Alias Muguu & another v Moses Kasaine Lenolkilal & 3 others Petition No 17 of 2014 (Explained) 2. Asanyo, Geoffrey Makana v Nakuru Water & Sanitation Services Company & 6 others Petition No 4 of 2014 - (Distinguished) 3. Judicial Service Commission v Gladys Boss Shollei & another Civil Appeal No 50 of 2014 - (Distinguished) 4. Mugendi, Daniel N v Kenyatta University & 3 others Civil Appeal No 6 of 2012 - (Considered) 5. Speaker of National Assembly v Karume [1992] KLR 22; (2008) 1 KLR (EP) 425 - (Explained) Statutes East Africa 1. Constitution ofKenya, 2010 articles 10, 22(1); 23; 27; 28; 41;50; 159(1)(2)(b)(e);162(a)(i); 165(5)(6); 232(2) (i); 258 - (Interpreted) 2. County Governments Act, 2012 (Act No 17 of 2012) sections 76, 77 (1) - (Interpreted) 3. Employment and Labour Relations Court Act, 2011 (Act No 20 of 2011) section 12 - (Interpreted) RULING 1. The claimant filed the memorandum of claim on 08.05.2015 through Mbogo & Muriuki Advocates. The claimant prayed for judgment against the respondent for: a. An order of reinstatement into the claimant’s position of employment as the Chief of Stafi and to remain in service of the respondents, and to perform the attached duties in accordance with the relevant provisions of the Constitution and other laws, unless he otherwise ceases to lawfully hold ofice in the said position. b. A declaration that the act of the 2nd respondent in relieving or removing the claimant of his duties is a breach of his constitutional right under Article 27, 28, 41, and 50 of Constitution of Kenya and that the same is null and void for all intents and purposes. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 7

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c. General damages for unlawful dismissal. d. Kshs.5, 198,000.00 being dues payable to the claimant as tabulated at paragraph 11 above. e. Costs and interests. 2. The 1st and 2nd respondents filed the memorandum of response on 03.06.2015 through Kithi & Company Advocates. The respondent prayed that the claim be dismissed with costs. 3. At paragraph 20 and 21 of the memorandum of response the respondents pleaded that any person afiected by the decision of the County Public Service Board or a person exercising disciplinary control over a pubic oficer in the county government is required to appeal to the Public Service Commission as provided for in section 77 of the County Governments Act, 2012. Thus, it was urged for the respondents that section 77 of the Act restricted and ousted the jurisdiction of the court. 4. The respondents filed together with the memorandum of response the notice of preliminary objection dated 29.05.2015 praying that the claimant’s suit be struck out or dismissed with costs to the respondent. The grounds of preliminary objection as set out in the notice were as follows: a. That the honourable court does not have jurisdiction to entertain the suit as canvassed or grant the prayers as sought by the memorandum of claim. b. The suit as canvassed before the honourable court is incompetent, fatally defective in law, incurable and cannot stand in law and therefore ought to be struck out. c. That the respondents are non-suited and their names should be struck ofi. d. That the suit is an abuse of the court process and cannot be heard or ventilated or heard by the court for that purpose. 5. The respondents filed on 21.04.2015 submissions on the preliminary objection. The parties’ advocates were heard on 21.07.2015 in oral submissions on the preliminary objection. 6. The 1st issue for determination is whether section 77 of the County Governments Act, 2012 ousts or restricts the jurisdiction of the court in the circumstances of the present suit. Subsections to Section 77 of the Act on appeals to the Public Service Commission provide as follows: 1. Any person dissatisfied or afiected by a decision made by the County Public Service Board or a person in exercise or purported exercise of disciplinary control against any county public oficer may appeal to the Public Service Commission( in this part referred to as the “Commission”) against the decision. 2. The Commission shall entertain appeals on any decision relating to employment of a person in a county government including a decision in respect ofa. recruitment, selection, appointment and qualifications attached to any ofice; b. remuneration and terms of service; c. disciplinary control; d. national values and principles of governance under Article 10, and values and principles of public service under Article 232 of the Constitution; e. retirement and other removal from ofice; f. pension benefits, gratuity and any other terminal benefits; or https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 8

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g. any other decision the Commission considers to fall within its constitutional competence to hear and determine on appeal in that regard. 3. An appeal under subsection (1) shall be in writing and made within ninety days after the date of the decision, but the Commission may entertain an appeal later if, in the opinion of Commission, the circumstances warrant it. 4. The Commission shall not entertain an appeal more than once in respect of one decision. 5. Any person dissatisfied or afiected by a decision made by the Commission on appeal in a decision made in a disciplinary case may apply for review and the Commission may admit the application if- 6. a. the Commission is satisfied that that there appear in the application new and material facts which might have afiected its earlier decision, and if adequate reasons for the nondisclosure of such facts at an earlier date are given; or b. there is an error apparent on record of either decision. An application for review under subsection (5) shall be in writing and made within the time prescribed by the Commission in regulations governing disciplinary proceedings, but the Commission may entertain an application for review later if, in the Opinion of the Commission, the circumstances warrant it. 7. It was submitted for the respondents that the claimant had been required to proceed on compulsory leave pending investigations about the claimant’s performance so that the case was disciplinary in nature and the decision that the claimant goes on compulsory leave was in exercise of powers of disciplinary control so that the proper action was for the claimant to appeal to the Commission. Thus, it was submitted for the respondents that the legitimate action was for the claimant to appeal to the Commission and not to move the court as it was held in the case of James Akelerio Alias Muguu and Another –Versus- Moses Kasaine Lenolkilal and 3 Others [2014]eKLR. The respondents further relied upon the holding in The Speaker of the National Assembly –Versus- The Hon. James Njenga Karume Civil Application No. 192 of 1992 (UR) where it was held that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. It was submitted that in the present case the first port of call for the claimant should have been the Commission, the suit was premature as the court lacked jurisdiction and the suit should be dismissed. 8. For the claimant it was submitted that the court enjoyed jurisdiction under section 12 of the Employment and Labour Relations Court Act and the employment relationship was not in dispute. It was submitted that on 4.05.2015 the claimant was orally dismissed by the 2nd respondent as pleaded in paragraph 7 of the memorandum of claim. The claimant filed the suit on 08.05.2015 and long before the alleged compulsory leave pending investigations. It was further submitted that the suit was about the manner in which the respondents had proceeded to dismiss the claimant unlawfully, illegally, unconstitutionally and against the law as pleaded more specifically in paragraph 8 of the memorandum of claim and as the claimant had prayed for a declaration that her fundamental rights and freedoms under the Constitution had been contravened. It was further submitted that section 77(1) used the word “may” suggesting that the claimant had an option to appeal to the Commission or take such other legitimate action such as filing the present suit. It was submitted that the claimant was questioning the illegal decision by the governor which could only be handled and resolved by the court and not the Commission. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 9

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9. The court has considered the submissions made for the parties. Article 234(2) (i) of the Constitution provides that the Public Service Commission is vested with the function and power to hear and determine appeals in respect of county governments’ public service. Article 262 defines “public service” to mean the collectivity of all individuals, other than state oficers, performing a function within a state organ. Accordingly, and firstly, the court holds that the power of the Commission to hear and determine appeals in respect of county governments’ public service constitutionally applies only to public oficers, and not state oficers, in the service of the county governments or any other state organ. Secondly, the court holds that section 77 of the County Governments Act, 2012 amplifies and brings into operation Article 234(2) (i) of the Constitution. 10. In considering the constitutional and statutory provisions that empower the Commission to hear and determine appeals in respect of county governments’ public service, the subject matter is set out in section 77 of the Act but the decisions the Commission may make are not set out in the Act or the Constitution. It is this court’s opinion and holding that in appeals to the Commission, the Commission can only make decisions that the County Public Service Board or relevant lawful authority could have made or vary such decision by simply setting it aside or making a decision that was in the Board’s or the other relevant lawful authority’s jurisdiction to make. The court has guided itself that on appeal the appellate authority applies the same substantive law and facts as applied by the primary authority that made the decision appealed against and generally considers facts as they were presented before the primary authority so that an appellate authority, in absence of anything else, may only set aside the decision appealed against or substitute the decision with any of the remedies that the primary authority was empowered to make. In other words, the appeal process deals with the merits or substance of the case and not procedural or legal propriety of the case. 11. In disciplinary matters, section 76 of the County Governments Act, 2012 is elaborate that punishment contrary to the Constitution cannot be imposed against a public oficer. In particular the section provides that the rules of natural justice must be observed, and the punishment cannot be contrary to provisions of the Constitution and Acts of Parliament. It is clear that the legitimacy of the procedure or punishment imposed as measured against the provisions of section 76 of the Act would be an issue of law and therefore not appealable to the Commission but subject to the jurisdiction of the court. This court’s opinion is that it is not for the County Public Service Board or the person exercising disciplinary control in the county government, as the case may be, to determine a dispute as to its or person’s compliance with section 76 of the Act, and similarly, the Commission would not have jurisdiction to decide such issue on appeal, which essentially would not be conceivable as a matter of a primary decision and therefore subject to the Commission’s appellate jurisdiction under section 77 of the Act. This court’s holding is that while making its primary decisions or decisions on appeals, the Commission like any other state organ or person under Article 10 of the Constitution must care and ask itself whether the decision is lawful or legitimate in view of relevant constitutional and statutory provisions but the original and unlimited jurisdiction to make a finding on legitimacy or lawfulness of decisions rests with the court as vested with the appropriate jurisdiction under Article 162 (2) (a) as read with Article 165(5) and (6) of the Constitution; Article 22(1), and section 12 of the Employment and Labour Relations Act, 2011. 12. In the present case the claimant has alleged that the oral dismissal was illegal, unlawful and unconstitutional. It is the holding of the court that the jurisdiction to entertain that allegation and to make a primary conclusive finding thereon is vested in the court and the Commission does not enjoy constitutional or statutory jurisdiction to determine that issue and to make appropriate remedy as is prayed for by the claimant in this case. The court considers that the line is thin but clearly sets apart the matters that can go to the Commission as of necessity in the first instance and those that may be https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 10

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urged before the court as of first instance without having to go through the Commission by reason of exhausting the prescribed alternative and statutory procedure and remedy. It is clear that legitimacy or lawfulness of the decisions is not one of the listed appealable subject matter under section 77 of the Act and it has not been shown that such would be a matter in the constitutional or statutory competence of the Commission to decide. 13. The court says it in other words as follows. The Constitution or legislation may provide that a person or public body or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions or powers as vested in the person or authority or public body by the Constitution or legislation. The Constitution or legislation may also vest in a person or authority or public body the power or function to consider or entertain given disputes or matters as of first instance or on appeal and to render decisions in that regard in accordance with the prescribed procedures. In the opinion of this court, such constitutional and legislative provisions shall not be construed as precluding a court from exercising the relevant jurisdiction in relation to any question whether that person or authority or public body has exercised the powers or functions in accordance with the Constitution or any other law. The court holds that such provisions do not oust or extinguish or adjourn the court’s jurisdiction to hear and determine a dispute about the legality or the manner of the exercise of the constitutional or statutory powers and functions by the relevant person, public body or authority as may have been vested in the person, public body or authority under the Constitution or statute. 14. The court is alert that under Article 159(2) (b) justice shall not be delayed and under Article 159 (2) (e) the court is guided that in exercise of judicial authority, the purpose and principles of the Constitution shall be protected and promoted. Under Article 159 (1) judicial authority is vested in the judiciary and it is the opinion of the court that issues of legality of actions or omissions is the immediate and proper primary or original province and jurisdiction of the court and is not the penultimate or initially ceded jurisdiction of persons, public bodies and authorities outside the judiciary. In the opinion of the court, it would amount to delayed justice to tell the claimant thus, “ The court knows your alleged case is that an illegality has taken place; you challenge the alleged illegality; on merits of the challenged decision you ought to appeal to the Commission; the Commission has no jurisdiction to consider issues of illegality as you have alleged in your case but it might consider it and may rule in your favour; and therefore, though this court has the primary jurisdiction to consider the issue of illegality as you have alleged, you ought to have gone to the Commission in the first instance just to see if the Commission might have considered the issue of illegality before you moved this court and your case is dismissed accordingly for failure to give the Commission chance to exercise the speculative and hopeful jurisdiction on that issue of alleged illegality.” While making that finding the court considers that in any event there are no established time lines for appealing and making of the decision by the Commission and the likely consequence is that the claimant may be subjected to irreparable harm such as rendering the cause of action to challenge the alleged illegality time barred. 15. In the instant case, looking at the alleged claims of illegality, unconstitutionality, breach of constitutional rights and the remedies as prayed for, it is dificult to find that the cited alternative procedure and remedy under section 77 of the Act was available to the claimant. Even if it is said that it was a case of mixed jurisdiction of the Commission and the court, it is the court’s opinion that the legitimate path was to invoke the court’s jurisdiction to hear and determine the intertwined issues, that being the most eficient and efiective manner of disposing the dispute. 16. In the circumstances of this case, the court returns that the provisions of section 77 of the County Government Act, 2012 did not oust or restrict the jurisdiction of the court for want of exhaustion of the procedure and remedies envisaged under the section. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 11

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17. The 2nd issue as stated in the respondents’ submissions is whether the Employment and Labour Relations Court has jurisdiction to entertain and determine claims of breach of fundamental rights under Articles 22 and 23 or enforcement of the Constitution under Article 258 of the Constitution as pertains to employment and labour relations matters. 18. The Court of Appeal has resolved the issue in the case of Prof. Daniel N. Mugendi –Versus- Kenyatta University and 3 Others, Civil Appeal No. 6 of 2012. The court stated thus, The question now is whether the appellant should go back and ‘sever’ the composite petition alleging violation of his fundamental rights and breach of contract of employment. Much as severance would entail time and resources to efiect the necessary amendments and make due motions, we are of the view that with necessary amendments, which appear imperative to make out a clear use of breach of rights being efiected, the appellant can and should be heard by the Industrial Court on the two claims i.e. violation of rights and breach of contract of employment. The position that the Industrial Court can and should entertain the claim as laid by the appellant, is in line with the decision of Majanja, J. in Petition No. 170 of 2012 – United States International University(USIU) –Versus- The Attorney General & Others.” 19. That this court enjoys the jurisdiction to hear and determine employment and labour relations matters alongside claims of fundamental rights (and enforcement of constitutional and statutory provisions) ancillary and incidental to those matters was upheld in the ruling delivered by this court on 30.04.2014 in Geofirey Makana Asanyo –Versus- Nakuru Water and Sanitation Services Company and 6 Others [2014]eKLR. The Court of Appeal held as much in Judicial Service Commission –Versus- Gladys Boss Shollei & Another [2014]eKLR. 20. The court followed the opinion in those cases in the ruling delivered on 15.05.2015 in Geofirey Mworia –Versus- Water Resources Management Authority and 2 Others [2015]eKLR. 21. Again, in Karisa Chengo and 2 Others –Versus- Republic [2015]eKLR the Court of Appeal has stated thus, ...By being of equal status, the High Court therefore does not have the jurisdiction to superintend, supervise, direct, guide, shepherd, and or review the mistakes, real or perceived, of the ELRC and ELC administratively or judiciously as was the case in the past. The converse equally applies. At the end of the day however, ELRC and ELC are not the High Court and vice versa. However, it needs to be emphasized that status is not the same thing as jurisdiction. The constitution though does not define ‘status’. The intentions of the framers of the constitution in that regard are obvious given the choice of the words they used; that the three courts (High Court, ELRC and ELC) are of the same juridical hierarchy and therefore are of equal footing and standing. To us it simply means that the ELRC and ELC exercise the same powers as the High Court in performance of its judicial function, in its specialised jurisdiction but they are not the High Court.” 22. As stated by the court earlier in this judgment, the original and unlimited jurisdiction to make a finding on legitimacy or lawfulness of decisions in disputes between employers and employees rests with this court as vested with the appropriate jurisdiction under Articles 159(1), 162 (2) (a) as read with Article 165(5) and (6) of the Constitution; Articles 22(1) and 258(1) of the Constitution, and the provisions of the Employment and Labour Relations Act, 2011. The court holds that the jurisdiction spreads to all issues in the employment relationship and related matters including the enforcement of the fundamental rights and freedoms under Article 22 of the Constitution and enforcement of the https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 12

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Constitution under Article 258 as far as the issues in dispute are, evolve, revolve or relate to employment and labour relations. The court holds that the compass or golden test for the court’s jurisdiction is the subject matter in the dispute namely disputes relating to employment and labour relations as provided for Article 162 (a) of the Constitution and as amplified in the Employment and Labour Relations Act, 2011 and not the remedies sought or the procedure of moving the court or the situ of the applicable law or any other extraneous considerations as may be advanced by or for a litigant. 23. In conclusion, the respondent’s preliminary objection filed on 3.06.2015 is dismissed with costs and the parties are now invited to take directions on the hearing of the main suit. SIGNED, DATED AND DELIVERED IN COURT AT NYERI THIS FRIDAY, 31ST JULY, 2015. BYRAM ONGAYA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1522/eng@2015-07-31 13

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