Leonard Kipkurui Sang v Sotik Tea Company Ltd.

OUMA M. MIGOWE ………………………… 5TH INTERESTED PARTY RATANDI C. NYAUNDI ……………………. 6TH INTERESTED PARTY CHEBELILENY P. CHEPKIENG …………. 7TH INTERESTED PARTY OKUTA P. OMONDI ………………………… 8TH INTERESTED PARTY NYANGWONO S. MATONGO …………….. 9TH INTERESTED PARTY OMOKI F. ONYANGO ……………………. 10TH INTERESTED PARTY OMWENGA N. MBORI …………………… 11TH INTERESTED PARTY MOGOI Z. NYASIANDOH ……………….. 12TH INTERESTED PARTY KEMBERO F. OMWERI …………………. 13TH INTERESTED PARTY BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 2

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MOSIGIS NEVISON ………………………. 14TH INTERESTED PARTY OINO J. MAUTI …………………………… 15TH INTERESTED PARTY MORARA E. MANYISA ………………….. 16TH INTERESTED PARTY MORIOKA J. ONGESA ………………….. 17TH INTERESTED PARTY NYAKUNDI E. ONDIEKI ………………… 18TH INTERESTED PARTY SIMIYU GEOFFERY M. ………………… 19TH INTERESTED PARTY ROTICH AUGUTINE …………………….. 20TH INTERESTED PARTY KIPKORIR W. MUTAI …………………… 21ST INTERESTED PARTY ONCHOKE S. OTISO …………………… 22ND INTERESTED PARTY MOGAKA S. KIBENI ……………………. 23RD INTERESTED PARTY OKERO W. MOREKA …………………… 24TH INTERESTED PARTY WANGILA G. MANDILA ………………… 25TH INTERESTED PARTY BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 3

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OMWENGA J. OBWOGE …………..……. 26TH INTERESTED PARTY NYASIMI D. NYANGAU ……………….…. 27TH INTERESTED PARTY ARASA T. GABRIEL ……………………… 28TH INTERESTED PARTY ALEX K. CHERUIYOT …………………… 29TH INTERESTED PARTY MUTAI J. CHERUYOT …………………… 30TH INTERESTED PARTY KIPROP S. KIRWA ……………………….. 31ST INTERESTED PARTY NYANUMBA S. NYAMWEYA ……………. 32ND INTERESTED PARTY ONKEO F. GAVANAH ……………………. 33RD INTERESTED PARTY MASIRA J. NYACHIO ……………………. 34TH INTERESTED PARTY LANGAT A. CHERUIYOT ……………….. 35TH INTERESTED PARTY OKECHI SHEM ……………………………. 36TH INTERESTED PARTY BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 4

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NYACHWAYA E. ONGAKI ………………. 37TH INTERESTED PARTY RONOH KIPLANGAT …………………….. 38TH INTERESTED PARTY SIMBA T. ANGWENYI ……………………. 39TH INTERESTED PARTY CHEPKIRUT LILIAN ……………………… 40TH INTERESTED PARTY KEBAKI E. NYAMASEGE ……………….. 41ST INTERESTED PARTY ROP D. KIPKOECH ………………………. 42ND INTERESTED PARTY OMWANWA E. OIGO ………………..…… 43RD INTERESTED PARTY OTIENO D. OGIRA ……………..………… 44TH INTERESTED PARTY BOSIRE R. OBURU ………………………. 45TH INTERESTED PARTY BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 5

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BARETIET H. KIPTOO ………………….. 46TH INTERESTED PARTY OGWORA PATRICK ………………………. 47TH INTERESTED PARTY WILSON NYASWABU ………………..…… 48TH INTERESTED PARTY ONCHONGA H. RONALD …………..…... 49TH INTERESTED PARTY KEMUNTO F. OMURWA ………………… 50TH INTERESTED PARTY CHEPKORIR ROSE ………………………. 51ST INTERESTED PARTY OMUKU J. OROKO ……………………….. 52ND INTERESTED PARTY JAIRUS ONGERI …………………….……. 53RD INTERESTED PARTY KIRET C. KERICH …………………..…… 54TH INTERESTED PARTY KIRUI J. KIPROTICH …………………… 55TH INTERESTED PARTY BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 6

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KIBET S. NGENO …………………………. 56TH INTERESTED PARTY BETT CHARLES …………………………… 57TH INTERESTED PARTY MARITIM P. KIPKURUI ……………….… 58TH INTERESTED PARTY JEPNGETICH EMILY …………………….. 59TH INTERESTED PARTY GICHANA K. NYAKUNDI …………..…… 60TH INTERESTED PARTY OGONYO R. OSEKO ……………………… 61ST INTERESTED PARTY OMAYO J. OCHIENG …………………….. 62ND INTERESTED PARTY MATAGARO Z. NYAKUNDI …………..… 63RD INTERESTED PARTY OMWENGA R. MOCHAMA ……………… 64TH INTERESTED PARTY BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 7

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MOKAMBA A. MESA …………………….. 65TH INTERESTED PARTY ICHWARA J. OSORO ……………………. 66TH INTERESTED PARTY ABUGA DOMINIC ……………………….… 67TH INTERESTED PARTY KIMUTAI C. LANGAT ……………………. 68TH INTERESTED PARTY KOMRO E. KESOGO ………………….…. 69TH INTERESTED PARTY SAWE ERIC ………………………….…….. 70TH INTERESTED PARTY NDUBI R. KWAMBOKA …………….……. 71ST INTERESTED PARTY RONO R. KIPROTICH ………………..…. 72ND INTERESTED PARTY SAWE ERIC ………………………………… 73RD INTERESTED PARTY KIPKEMOI I. BETT …………………….… 74TH INTERESTED PARTY BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 8

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MBURU P. CHEGE ……………………….. 75TH INTERESTED PARTY KIRUI PATRICK ………………………….. 76TH INTERESTED PARTY SAGWE J. NYABURI ……………………... 77TH INTERESTED PARTY RULING 1. In this Petition, the Interested Parties stated that they were the Respondent’s employees. The Interested Parties further stated that the Respondent unilaterally and unconstitutionally implemented a lay off policy that had affected and impacted their livelihoods and had been unable to seek any redress owing to harassment and victimization by the Respondent at the work place. 2. The Interested Parties’ prayers included among others a declaration that the Respondent’s action of implementing a BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 9

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lay off programme was unfair and unlawful labour practice and violated their constitutional right to fair labour practice guaranteed under Article 41(1) of the Constitution of Kenya. Notice of Motion dated 10th June 2025 3. The Respondent filed a Notice of Motion dated 10 th June 2025 seeking the following orders: - I. That the Petition dated 24th March 2025 be struck out for want of jurisdiction. II. That the name of the Petitioner be struck out for lack of locus standi. 4. Through a supporting affidavit sworn by Yvonne Achitsa on 10th June 2025, the Respondent stated that this court lacked jurisdiction to determine the matter and ought to strike out BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 10

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the Petition. That the Interested Parties’ claims related to alleged unlawful deductions of salaries and alleged breach of their employment contract arising out of the employee lay off policy. The Respondent further stated that by virtue of section 12 of the Employment and Labour Relations Court, Act, the Employment and Labour Relations Court had the jurisdiction to determine the Petition. 5. It was the Respondent’s case that disputes between employers and employees fell within the provisions of section 12 of the Employment and Labour Relations Court Act. It was the Respondent’s further case that the Petitioner was a stranger to the Respondent and that there was no employee-employer relationship with him. That the Petitioner was a representative of the Trade Union that represented the Interested Parties. The Response BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 11

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6. The Petitioner filed a Replying Affidavit dated 20 th August 2025 and stated that he was an advocate of the high court of Kenya and a public-spirited citizen who was passionate about the promotion of human rights and thus had locus standi donated to him by Article 22 and 258 of the Constitution of Kenya. 7. It was the Petitioner’s case that Article 23 read conjunctively with Article 165 of the Constitution of Kenya grants the High Court original jurisdiction to hear and determine Applications for redress of a denial, violation or infringement of human rights. That the Employment and Labour Relations Court is vested with jurisdiction over disputes which relate to employment and labour between employees, trade unions and employer organizations or federations. It was the Petitioner’s further case that the instant Petition pertained to the legality or constitutionality of the Respondent’s lay off programme which was an unknown concept under the law. BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 12

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8. The Petitiooner stated that the High Court had unlimited original jurisdiction in criminal and civil matters and the jurisdiction to determine the question whether a right or a fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened. 9. Through its written submissions dated 20 th August 2025, the Petitioner submitted that the jurisdiction of the Employment and Labour Relations Court was restricted to instances where there existed an employee-employer relationship, which was not the case in the present Petition. He relied on Joy Brenda Masinde vs Law Society of Kenya & another (2015) eKLR, Nick Githinji Ndichu vs Clerk Kiambu County Assembly & another (2014) eKLR et.al. 10.Having gone through the court record and pleadings above, the only issue for my determination was whether this court BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 13

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has the jurisdiction to determine the Petition dated 24 th March 2025. 11.The Court of Appeal in Public Service Commission & 4 others v Cheruiyot & 20 others (Civil Appeal 119 & 139 of 2017 (Consolidated)) [2022] KECA 15 (KLR) (8 February 2022) (Judgment) discussed the issue of jurisdiction to wit: - “Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows: “By jurisdiction is meant the authority which a court has to decide matters that are litigated BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 14

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before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior (including an arbitrator) court or depends tribunal on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 15

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court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows: “…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 16

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A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae. The Supreme Court In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows: “…a court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.” BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 17

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In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No 2 of 2011, the Supreme Court reiterated its jurisdiction. In the Independent Electoral holding matter on of Commission a court’s the Interim (supra) at paragraph 68 of its ruling, the Supreme Court held as follows: “A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.” 12.In the present matter, the Respondent stated that this court did not have the jurisdiction to deal with the Petition as the matters in dispute fell under the jurisdiction BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING of the 18

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Employment and Labour Relations Court. On the other hand, the Petitioner stated that this court had unlimited original jurisdiction ro determine the Petition. The Petitioner further stated that the Petition concerned itself with the Respondent’s lay off programme and did not concern itself with the issue of an employer-employee dispute. 13.The Employment and Labour Relations Court Act is described as an Act of Parliament to establish the Employment and Labour Relations Court to hear and determine disputes relating to employment and labour relations and for connected purposes. Section 12 (1) of the Employment and Labour Relations Court Act provides: - The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 19

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other written law which extends jurisdiction to the Court relating to employment and labour relations including — (a) disputes relating to or arising out of employment between an employer and an employee; (b) disputes between an employer and a trade union; (c) disputes between an employers' organisation and a trade unions organisation; (d) disputes between trade unions; (e) disputes between employer organizations; (f) disputes between an employers' organisation and a trade union; (g) disputes between a trade union and a member thereof; (h) disputes between an employer's organisation or a federation and a member thereof; (i) disputes concerning the registration and election of trade union officials; and BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 20

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(j) disputes relating to the registration and enforcement of collective agreements. 14.I have keenly gone through the Petition and in particular, the specific violations of the Constitution by the Respondent as alleged by the Petitioner. The Petitioner stated that the Respondent unilaterally implemented a lay off programme. The Petitioner further stated that the sudden and arbitrary decision by the Respondent to deduct the Interested Parties’ salaries was in total disregard to the binding employment contracts and Article 47(2)a of the Constitution of Kenya which guaranteed every employee a right to fair remuneration. 15.From the above, it is clear to me that for the court to determine the issues of the legality or illegality of the implementation of the layoff programme and the deduction of salaries, it would have to interrogate evidence presented by both parties in relation to the employment between the BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 21

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Respondent and the Interested Parties. The said evidence would entail documents which include the employment contracts. This in my view was an employer-employee dispute. It is salient to note that the whole Petition as framed and the prayers sought clearly brought out this issue. 16.I agree with Odunga J. (as he then was) in Maithya v Pharmacy and Poisons Board; Pharmaceutical Society of Kenya & another (Interested Parties) [2019] KEHC 8474 (KLR) where he held: - “Similarly, pursuant to Article 23(3) of the Constitution as read with section 12(3) of the Employment and Labour Relations Court Act, it is my view Relations that Court the Employment can grant and reliefs Labour in a constitutional petition. However, the jurisdiction to do so is confined to matters falling within Article 41 of the Constitution as read with section BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 22

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12 of the Employment and Labour Relations Court Act………. …………. This window, it has been held, is to empower the Employment and Labour Relations Court to fully handle employment matters that are exclusively reserved for it under Article 162(2) of the Constitution of Kenya 2010. This position, in my view is the true interpretation of section 12 of the Employment and Labour Relations Act Cap 234B, Laws of Kenya Therefore, the High Court does not have jurisdiction to determine matters that are a preserve of the Employment and Labour Relations Court and vice versa…………” 17.Flowing from the above and in reference to section 12 (1) of the Employment and Labour Relations Court Act, it BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 23

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is my finding that this court has no jurisdiction to determine the Petition. The same is vested in the Employment and Labour Relations Court which is vested with exclusive and original jurisdiction to hear and determine the present Petition. I have no option other than to down my tools. 18.In the end, the Petition dated 24th March 2025 is struck out. Each Party to be bear its own costs 19.File is closed. Ruling delivered, dated and signed at Bomet this 19 th Day of March, 2026. ........................................... HON. JULIUS K. NG’ARNG’AR JUDGE Ruling Delivered in the presence of; Susan/Siele Court Assistant Petitioner – present BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 24

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Bett for Opiyo for the Respondent BOMET HIGH COURT CONSTITUTIONAL PET. NO. E006 OF 2025 - RULING 25

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