1. What is before me is the Preliminary Objection to the Petition. It is dated 15/04/2024. It is brought by the 1st Respondent on the following:
a) That the instant Petition lacks specificity in regard to the alleged violations and lacks substantiation hence does not satisfy the criteria of a Constitution Petition as established in the Case of Anarita Karimi Njeru –vs- Republic (1979) eKLR.
b) That this Honourable Court lacks Jurisdiction to hear and determine the Petition as the subject matter is a civil dispute of the nature of an employee-employer dispute which is within the jurisdiction of the Employment and Labour Relations Court.
c) That the Petition is an abuse of the Court process as it seeks to obstruct compliance with Court Orders issued on 22nd March 2024 in HCCC E003 OF 2024, Purity Mungania -vs- Gordon Gatura & Others.
2. The parties agreed to canvass the preliminary objection through written submissions.
3. To give context to the P.O it is important to state the reliefs sought by the Petitioners in the Petition dated 25/03/2024. These are;
a) A declaration that the Respondents are in breach and have violated the Petitioners’ fundamental rights and freedoms.
b) A declaration that the 1st Respondent has breached a statutory and fiduciary duty to the 2nd Interested Party by engaging in fraudulent, dishonest and unethical conduct.
c) A declaration that the 1st Respondent has breached and or violated chapter 6 of the Constitution of Kenya and the National Code of Conduct for nurses in Kenya.
d) An order directing an independent audit into the accounts of the 2nd Interested Party to ascertain all amounts of unlawful commissions hitherto paid to the 1st Respondent.
e) An order directing the 1st Respondent to reimburse in full the amounts unlawfully so paid together with interest thereon.
f) An order directing the Nursing Council of Kenya to investigate violations to its code of conduct by the 1st Respondent and to take appropriate action to redress all the aggrieved parties particularly the petitioners herein.
g) A declaration that by virtue of their contribution and financial dealing with the 2nd Interested Party, the Respondents ceased to be shareholders of the 2nd Interested Party and assume the role of employees.
h) Orders permanently restraining the Respondents from interfering with the human resource functions of the 2nd Interested Party particularly, harassing, threatening, intimidating, terminating services or in any other way violating the fundamental rights and freedoms articulated herein.
i) Orders permanently removing the Respondents as mandatory signatories to the 2nd Interested Party’s accounts and for the making of appropriate replacement thereof.
j) Any other order, relief or remedy which this honorable court may deem fit and proper to grant in the circumstances of this case.
4. In support of the P.O the Respondent set out the following issues for determination:
a) Whether the Petition meets the threshold of particularization and substantiation of violations of the Constitution set in Anarita Karimi Njeru -vs- Republic (1979) eKLR
b) Whether the Court has jurisdiction to hear and determine employee-employer disputes.
5. The Respondent relied on several authorities:
I. Anarita Karimi Njeru –vs- Republic (1979) eKLR the respondent submitted that the Petitioner has not pleaded with precision particulars of violations of the Constitution as required; that the test in Anarita Karimi Njeru (supra) has been refined and upheld severally in countless decisions of the superior courts for instance Mumo Matemo -vs- Trusted Society of Human Rights Alliance [2014] eKLR where the Court of Appeal held that:
“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court… Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle”
II. Nasra Ibrahim Ibren -vs- Independent Electoral and Boundaries Commission & 2 others [2018] eKLR where the Court of Appeal held that;
“A party is under a constitutional forensic duty to clearly set out the particulars of the constitutional transgressions that in his/her opinion the Court of Appeal committed in their interpretation and/or application. Those grounds must be pleaded with precision and the constitutional principle and/or provision alleged to have been violated clearly set out.”
III. Khen Kharis Mburu -vs- Inspector General Police Service & 3 others [2019] eKLR where the court held thus;
“One of the cardinal principles in constitutional litigation is that a party who claims that a right or fundamental freedom has been violated, is being violated or is threatened, must plead with accuracy and precision demonstrating the right violated, or infringed, the article of the Constitution violated and the jurisdictional basis for it. That is; it is now an established principle of law that anyone who wishes the court to grant a relief for violation of a right or fundamental freedom must plead in a precise manner the constitutional provisions said to have been violated or infringed, the manner of infringement and the jurisdictional basis for it.”
6. The Respondent further relied on Rule 4 (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (commonly referred to as ‘the Mutunga Rules’) for the submission that the petition was not pleaded with precision as required in constitutional petitions. That the Petition did not provide any particulars of the claims relating to the alleged violations of the Constitution of Kenya. It was submitted that although paragraph 46 of the Petition included a clause on Particulars of breach of the Petitioners’ rights and freedoms by the Respondents listing articles 22,23 (1), 25, 33,36, 41 (1) and 43 (1) as having been breached, the petitioners failed to provide explanations in the supporting affidavit of how these rights had been violated by the Respondents. That no evidence has been provided to back up the allegations of Constitutional violations.
7. It was submitted that paragraph 47 of the Petition claims that the 1st Respondent had breached Chapter 6 of the Constitution and National values and principles but the Petitioner’s claim did not identify the specific clauses of Chapter 6 or the National Values and Principles allegedly breached by the 1st Respondent. That no evidence in support of the alleged violations is found in the supporting affidavit of Felix Ngalyuka, the lead Petitioner.
8. It was also submitted that there was no record of evidence provided in the supporting affidavit that supports and/or provides demonstrable evidence of violations of articles 22, 23,25,29,33,36,41,43,11 and all other constitutional provisions stated in the Petition.
9. It was argued that the petition did not adhere to the guidelines provided by the Mutunga Rules on the contents of a Petition in that it does not include two critical components to wit;
a) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
b) details regarding any civil or criminal case, that involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
10. It was submitted that the Supporting Affidavit contains extensive allegations of criminal culpability of the 1st Respondent for instance, at paragraph 41 it is alleged that the 1st Respondent doctored medical records. It was contended that this would ordinarily amount to forgery and fabrication which is a criminal offence but there is no record that these offences were reported to the appropriate authorities.
11. It was submitted that the petition does not raise any constitutional issue relying on Wahome -vs- Attorney General & 2 others (Petition E277 of 2020) [2021] KEHC 73 (KLR) where the court defined a Constitutional issue thus;
“…. broadly speaking, a constitutional issue is, therefore, one which confronts the various protections laid out in a constitution. Such protections may be in respect to the Bill of Rights or the Constitution itself. In any case, the issue must demonstrate the link between the aggrieved party, the provisions of the Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement. In the words of Langa, J in Minister of Safety & Security v Luiters, (2007) 28 ILJ 133 (CC): -… When determining whether an argument raises a constitutional issue, the Court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the Court to consider constitutional rights and values…”
12. It was submitted that a detailed scrutiny of the petition reveals that it is nothing but a civil dispute disguised as a Constitutional petition. That an elaborate scrutiny of the prayers sought and grounds in the supporting affidavit should reveal to this Court that the crux of the dispute is the internal affairs and management of the company by the name Makindu Medical Centre Limited and that there is nothing constitutional about the dispute.
13. As to whether the Court has jurisdiction to hear and determine employee-employer disputes, it was submitted that the Employment and Labour Relations Court is established pursuant to Article 162 (2) (a) of the Constitution to hear and determine disputes relating to employment and labor relations. That the Employment and Labour Relations Court Act, No. 20 of 2011 operationalizes the Court and section 12 (1) thereof outlines the jurisdiction of the Court.
14. It was submitted that the Petitioners’ claim is a dispute relating to or arising out of employment between an employer and an employee because; i) according to the heading of the petition, one of the substantive laws of the dispute is section 4 and 5 of the Labour Relations Act which is one of the main substantive statutes that govern the Employment and Labour Relations Court. That any dispute based on this Act falls within the jurisdiction of the ELRC court. ii) prayer VII of the Petition seeks the declaration of Respondents as employees of the 2nd Interested Party hence this Court is being called to determine employment status. It was contended that such a prayer should be directed to the ELRC court.
15. In conclusion, this court was urged to uphold the P.O and dismiss the petition with costs to the 1st Respondent.
16. In opposition of the P.O the Petitioners & Interested Parties in their submissions argued the following issues for determination;
a) Whether the P.O is merited and /or meets the criteria for a preliminary objection.
b) Whether the petition satisfies the criteria for a constitutional petition.
c) Whether this court is seized with jurisdiction to hear and determine the petition.
d) Who should bear the costs of this application?
17. On the first issue, they relied on Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696 where the court defined a P.O;
“a preliminary objection is in the nature of what used to be a demurer. It raises a pure point of law which is urged on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
18. On the nature of a P.O, they cited Mbarak Mbaja [2005] eKLR for the submission that it should be a pure point of law which must not be blurred with factual details liable to be contested and proved through a process of evidence; and on Margaret Wairimu Kariuki -vs- John Waweru Kabiru [2021] eKLR where the court stated;
“for the court to determine whether the issues herein were directly and substantially in issue with the other suit, it is the court’s considered view that it will have to ascertain and probe evidence ascertaining whether the issues raised in the instant suit are the same as the ones in the appeal aforesaid and further interrogate the prayers sought whether they are the same and relate to the same issues. On whether or not the same are sub-judice, facts have to be ascertained and a preliminary objection cannot be raised on disputed facts. Therefore, this court holds and finds that what has been raised by the 1st respondent does not amount to a preliminary objection and thus the preliminary objection is not merited.”
19. It was submitted that in order for this court to ascertain whether the petitioners have raised labor issues, it will have to delve to the pleadings and address matters of fact which clearly removes the P.O from pure points of law into the realm of facts. They supported this with Independent Electoral and Boundaries Commission v. Jane Cheperemger & 2 Others [2015] eKLR, Joel Kendwiyo v. District Criminal Investigations Officer Nandi & 4 Others [2019] eKLR, and Patrick [2021] for the submission that a P.O should not be used as sword to win a case and deny the Petitioner an opportunity to be heard on merit.
20. As to whether the petition meets the criteria of a constitutional petition, it was submitted that the petition chronicles a series of commercial disputes and misunderstandings between the directors of the 2nd Interested Party which have resulted in constitutional violations against the Petitioners. That the violations range from refusal to sign suppliers and salary cheques for employees, siphoning of hospital materials, alteration of theatre attendance registers, altercations in theatre in the glare of the public, harassment and intimidation of staff expressing dissenting opinions among other violations. It was contended that the violations have not only affected the Petitioners’ right to earn a livelihood but also the right of patients and community of interest to access essential medical service from the 2nd Interested Party.
21. The Petitioners relied on Rules 4 and 10 of the Mutunga Rules for the submission that the Petitioners’ pleadings have met the criteria for a constitutional petition by among others; setting out the facts relied on in precision, citing the specific constitutional provisions infringed as well as the injuries sustained by the Petitioners and community of interest.
22. The Petitioners cited South African Constitutional Court in Frederick & Others -vs- MEC for Education and Training Eastern Cape & Others (2002) 23 ELJ. 81(CC) where the court stated;
“The Constitution provides no definition of constitutional matter ‘what is a constitutional matter must be cleared from a reading of the constitution itself’ if regard has to be had to the provisions…constitutional matters must include disputes as to whether any law or conduct is inconsistent with the constitution as well as issues concerning the status, powers and functions of an organ of the state… the interpretation, application and upholding of the constitution are also constitutional issues…the jurisdiction vested in the constitutional court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…when determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider constitutional rights and values...” (emphasis is mine)
23. Further reference was made to Kenya National Commission on Human Rights -vs-Attorney General, Independent Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR where the court stated;
“the court must always consider whether the party seeking to move it falls within the categories of parties decreed as having such standi by the constitution.”
24. As to whether this court has jurisdiction to hear and determine the petition, it was submitted that a close scrutiny of the pleadings reveals that the root and genesis of the cause of action is a commercial dispute involving the directors of the 2nd Interested Party which has spilled over to the employees particularly in their desperate attempt to reconcile the directors and salvage the going concern status of the 2nd Interested Party in order to salvage their employment.
25. It was submitted that the 1st Respondent has perceived a substantial number of the Petitioners to owe allegiance to the 1st Interested Party and has reacted by engaging in conduct which infringes upon and tramples down their constitutional rights. That this suit is a classic example of a cocktail cause of action in which this court is invited to apply the pre-dominant purpose rule rather than adopting the simple approach of disclaiming jurisdiction with resultant costs, delays, hardship and inconvenience to the parties. The court was referred to Suzanne Achieng Butler & 4 Others -vs- Redhill Investments Ltd & Anor (2016) eKLR where the court stated;
“When faced with a controversy whether a particular case is a dispute about land (which should be litigated at ELC) or not, the courts utilize the pre-dominant purpose test. In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land but the High Court has jurisdiction if it is predominantly for the provision of goods, construction or works. The court must first determine whether the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale or land or in this case, the construction of a town house.”
26. The Petitioners submit that the approach has been upheld severally by the Supreme Court and the Court of Appeal as demonstrated in Benson Makori Makworo v Nairobi Metropolitan Services & 2 others[2022] KEHC 26937 (KLR),John Ngimor & 554 others v Northern Rangelands Trust & 3 others [2021] KEELC 3840 (KLR) and Republic -vs- Chairman Business Premises Rent Tribunal & David Wakahu Ng’ang’a ex-parte Carrington Complex Ltd [2019] eKLR.
27. This court was invited to consider that there is a related matter namely HCCOM No. E003 of 2024 involving the Respondents and the 1st Interested Party where it has already indicated that it is seized of jurisdiction. That the root causes of the dispute are related but the Petitioners are not parties to that dispute for want of locus.
28. Further, this court was invited to consider the overriding objectives under sections, 1A, 1B and 3A of the Civil Procedure Act namely the necessity for efficient, affordable and cost-effective approach by the court in resolution of disputes.
29. It was contended that upholding the P.O would be an affront to the overriding objective of the statute as it would be calling upon the petitioners to file another matter at the ELRC while another matter with the same underlying causes of action remains before this court. That it will result in undue inconvenience and costs to the Petitioners.
30. This court was also invited to consider that it has already referred parties to mediation which they attended on at least 4 occasions and concluded... That the action in itself amounted to exercise of jurisdiction over the matter. That if the court disclaims jurisdiction at this stage, it will render the mediation proceedings a nullity retrospectively and occasion a miscarriage of justice to the Petitioners.
31. As to who should bear the costs of the application, reference was made to section 27 of the Civil Procedure Act for the submission that costs follow the event.
Analysis & Determination
32. Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696 is the locus classicus on the threshold of a P.O. The Court of Appeal stated that;
“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit….
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.”
33. It is therefore well settled that a P.O must not be blurred with factual details needing to be established through the process of evidence.
34. The first ground in the P.O is that the Petition lacks specificity and substantiation of the alleged violations. The locus classicus, Anarita Karimi Njeru (supra) and many other authorities determined thereafter, require constitutional petitions to be framed precisely. A petitioner is expected to state the complaint, the constitutional provision that is alleged to be violated and the manner of violation. Additionally, Rule 4(2) of the Mutunga Rules provide that;
“The petition shall disclose the following
a) the petitioner’s name and address;
b) the facts relied upon;
c) the constitutional provision violated;
d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
f) the petition shall be signed by the petitioner or the advocate of the petitioner; and
g) the relief sought by the petitioner.”
35. In this matter paragraph 46 of the Petition makes reference to the provisions of Articles 22, 23, 25, 33, 36, 41 and 43 of the Constitution. These same articles are contained in the heading of the Petition. A look at the body of the Petition reveals that the Petitioners have not specifically stated how their rights under the said Articles have been infringed by the Respondents or the injury that has resulted or is expected to result from the infringement.
36. Paragraph 47 of the petition states that the 1st Respondent has contravened chapter 6 of the Constitution of Kenya as read with Article 232 and 259(1) thereof as pertains integrity, national values and principles. Chapter 6 of the Constitution is on leadership and integrity for state officers, Article 232 is on public service and Article 259 is on interpretation of the Constitution.
37. The Constitution defines a State Officer’ as a person holding a state office and further provides that a ‘state office’ means any of the following offices; President, Deputy President, Cabinet Secretary, Member of Parliament, Judges & Magistrates, member of a commission to which Chapter Fifteen applies, holder of an Independent Officer to which Chapter Fifteen applies, member of a county assembly, governor or deputy governor of a county or other member of the executive committee of a county government, Attorney General, Director of Public Prosecutions, Secretary to the Cabinet, Principle Secretary, Chief of the Kenya Defence Forces, commander of a service of the Kenya Defence Forces, Director General of the National Intelligence Service, Inspector General and Deputy Inspectors General of the National Police Service or an office established and designated as a State Office by national legislation.
38. The licence of the 2nd Interested Party (the hospital) shows that it is a private medical institution and the Petitioners have not demonstrated the state office being held by the Respondents as well as the specific provisions that have been violated. The Petitioners have made reference to full chapters of the Constitution hence falling short of the requirement of precision.
39. Some of the particulars of injuries given in the petition relate to the hospital itself and not the Petitioners and there is no demonstration of the nexus between the alleged violation of rights by the Respondents and resultant loss to the Petitioners. For example, loss of image and reputation of the Hospital has been particularized as a loss but the Petitioners have not demonstrated the specific right which has been violated by alleged loss.
40. The Petitioners have also alleged that the 1st Respondent siphoned millions of shillings through fabricated, doctored and bogus entries in the staff theatre attendance book. This allegation borders on the criminal offence of obtaining by false pretenses/stealing yet there is no evidence of such a case against the 1st Respondent. In short, it is evident that the petition lacks specificity and substantiation of the alleged violations.
41. The totality of this matter is that it emanates from a commercial dispute whose aftermath is the alleged violation of the rights of the employees of the subject hospital. The allegation of violations of rights of patients (the public interest) has not been demonstrated on the face of the petition.
42. This court does not need to delve into the facts of this case to determine what has been pointed out in the P.O. The pleadings as they are, on their face demonstrate the paucity of any supporting evidence that this is a Constitutional Petition. They do not on their face invite this court, nay force it to constitutional dispute. It is a commercial dispute as clearly indicated by counsel, and what stand s out are the labour and employment issues as will have demonstrated hereunder…
43. The second ground in the P.O is that this Court Lacks Jurisdiction to hear and determine the Petition as the subject matter is a civil dispute of the nature of an employee-employer dispute which is within the jurisdiction of the Employment and Labour Relations Court.
44. It has been readily admitted by the Petitioners that the genesis of the petition is a dispute among the directors of the hospital which has spilled over to the employees (petitioners) and that the employees have tried to reconcile them in a desperate attempt to salvage the hospital and their employment.
45. Having read the petition and affidavit in support, it is clear that a lot of the grievances by the Petitioners are directed to the 1st Respondent who is one of the directors of the hospital. The grievances include interference with the human resource functions of the hospital e.g. intimidating, abusing and threatening the employees, causing disturbance at the hospital, conflict of interest etc. This court has also been called upon to determine the employment status of the Respondents and from the heading of the petition, the dispute is based on sections 4 and 5 of the Labor Relations Act. These provisions state as follows:
4. Employee’s right to freedom of association
(1) Every employee has the right to—
(a)participate in forming a trade union or federation of trade unions;
(b)join a trade union; or
(c)leave a trade union.
(2) Every member of a trade union has the right, subject to the constitution of that trade union to—
(a)participate in its lawful activities;
(b)participate in the election of its officials and representatives;
(c)stand for election and be eligible for appointment as an officer or official and, if elected or appointed, to hold office; and
(d)stand for election or seek for appointment as a trade union representative and, if elected or appointed, to carry out the functions of a trade union representative in accordance with the provisions of this Act or a collective agreement.
(3) Every member of a trade union that is a member of a federation of trade unions has the right, subject to the constitution of that federation to—
(a)participate in its lawful activities;
(b)participate in the election of any of its office bearers or officials; and
(c)stand for election or seek for appointment as an office bearer or official and, if elected or appointed, to hold office.
5. Protection of employees
(1) No person shall discriminate against an employee or any person seeking employment for exercising any right conferred in this Act.
(2) Without limiting the general protection conferred by sub-section (1), no person shall do, or threaten to do any of the following—
(a)require an employee or a person seeking employment not to be or become a member of a trade union or to give up membership of a trade union;
(b)prevent an employee or person seeking employment from exercising any right conferred by this Act or from participating in any proceedings specified in this Act;
(c)dismiss or in any other way prejudice an employee or a person seeking employment—
(i)because of past, present or anticipated trade union membership;
(ii)for participating in the formation or the lawful activities of a trade union;
(iii)for exercising any right conferred by this Act or participating in any proceedings specified in this Act; or(iv)for failing or refusing to do something that an employee may not lawfully permit or require an employee to do.
(3) No person shall give an advantage, or promise to give an advantage, to an employee or person seeking employment in exchange for the person not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act:
Provided that nothing in this section shall prevent the parties to a dispute from concluding an agreement to settle that dispute.
46.
[...truncated]
a) That the instant Petition lacks specificity in regard to the alleged violations and lacks substantiation hence does not satisfy the criteria of a Constitution Petition as established in the Case of Anarita Karimi Njeru –vs- Republic (1979) eKLR.
b) That this Honourable Court lacks Jurisdiction to hear and determine the Petition as the subject matter is a civil dispute of the nature of an employee-employer dispute which is within the jurisdiction of the Employment and Labour Relations Court.
c) That the Petition is an abuse of the Court process as it seeks to obstruct compliance with Court Orders issued on 22nd March 2024 in HCCC E003 OF 2024, Purity Mungania -vs- Gordon Gatura & Others.
2. The parties agreed to canvass the preliminary objection through written submissions.
3. To give context to the P.O it is important to state the reliefs sought by the Petitioners in the Petition dated 25/03/2024. These are;
a) A declaration that the Respondents are in breach and have violated the Petitioners’ fundamental rights and freedoms.
b) A declaration that the 1st Respondent has breached a statutory and fiduciary duty to the 2nd Interested Party by engaging in fraudulent, dishonest and unethical conduct.
c) A declaration that the 1st Respondent has breached and or violated chapter 6 of the Constitution of Kenya and the National Code of Conduct for nurses in Kenya.
d) An order directing an independent audit into the accounts of the 2nd Interested Party to ascertain all amounts of unlawful commissions hitherto paid to the 1st Respondent.
e) An order directing the 1st Respondent to reimburse in full the amounts unlawfully so paid together with interest thereon.
f) An order directing the Nursing Council of Kenya to investigate violations to its code of conduct by the 1st Respondent and to take appropriate action to redress all the aggrieved parties particularly the petitioners herein.
g) A declaration that by virtue of their contribution and financial dealing with the 2nd Interested Party, the Respondents ceased to be shareholders of the 2nd Interested Party and assume the role of employees.
h) Orders permanently restraining the Respondents from interfering with the human resource functions of the 2nd Interested Party particularly, harassing, threatening, intimidating, terminating services or in any other way violating the fundamental rights and freedoms articulated herein.
i) Orders permanently removing the Respondents as mandatory signatories to the 2nd Interested Party’s accounts and for the making of appropriate replacement thereof.
j) Any other order, relief or remedy which this honorable court may deem fit and proper to grant in the circumstances of this case.
4. In support of the P.O the Respondent set out the following issues for determination:
a) Whether the Petition meets the threshold of particularization and substantiation of violations of the Constitution set in Anarita Karimi Njeru -vs- Republic (1979) eKLR
b) Whether the Court has jurisdiction to hear and determine employee-employer disputes.
5. The Respondent relied on several authorities:
I. Anarita Karimi Njeru –vs- Republic (1979) eKLR the respondent submitted that the Petitioner has not pleaded with precision particulars of violations of the Constitution as required; that the test in Anarita Karimi Njeru (supra) has been refined and upheld severally in countless decisions of the superior courts for instance Mumo Matemo -vs- Trusted Society of Human Rights Alliance [2014] eKLR where the Court of Appeal held that:
“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court… Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle”
II. Nasra Ibrahim Ibren -vs- Independent Electoral and Boundaries Commission & 2 others [2018] eKLR where the Court of Appeal held that;
“A party is under a constitutional forensic duty to clearly set out the particulars of the constitutional transgressions that in his/her opinion the Court of Appeal committed in their interpretation and/or application. Those grounds must be pleaded with precision and the constitutional principle and/or provision alleged to have been violated clearly set out.”
III. Khen Kharis Mburu -vs- Inspector General Police Service & 3 others [2019] eKLR where the court held thus;
“One of the cardinal principles in constitutional litigation is that a party who claims that a right or fundamental freedom has been violated, is being violated or is threatened, must plead with accuracy and precision demonstrating the right violated, or infringed, the article of the Constitution violated and the jurisdictional basis for it. That is; it is now an established principle of law that anyone who wishes the court to grant a relief for violation of a right or fundamental freedom must plead in a precise manner the constitutional provisions said to have been violated or infringed, the manner of infringement and the jurisdictional basis for it.”
6. The Respondent further relied on Rule 4 (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (commonly referred to as ‘the Mutunga Rules’) for the submission that the petition was not pleaded with precision as required in constitutional petitions. That the Petition did not provide any particulars of the claims relating to the alleged violations of the Constitution of Kenya. It was submitted that although paragraph 46 of the Petition included a clause on Particulars of breach of the Petitioners’ rights and freedoms by the Respondents listing articles 22,23 (1), 25, 33,36, 41 (1) and 43 (1) as having been breached, the petitioners failed to provide explanations in the supporting affidavit of how these rights had been violated by the Respondents. That no evidence has been provided to back up the allegations of Constitutional violations.
7. It was submitted that paragraph 47 of the Petition claims that the 1st Respondent had breached Chapter 6 of the Constitution and National values and principles but the Petitioner’s claim did not identify the specific clauses of Chapter 6 or the National Values and Principles allegedly breached by the 1st Respondent. That no evidence in support of the alleged violations is found in the supporting affidavit of Felix Ngalyuka, the lead Petitioner.
8. It was also submitted that there was no record of evidence provided in the supporting affidavit that supports and/or provides demonstrable evidence of violations of articles 22, 23,25,29,33,36,41,43,11 and all other constitutional provisions stated in the Petition.
9. It was argued that the petition did not adhere to the guidelines provided by the Mutunga Rules on the contents of a Petition in that it does not include two critical components to wit;
a) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
b) details regarding any civil or criminal case, that involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
10. It was submitted that the Supporting Affidavit contains extensive allegations of criminal culpability of the 1st Respondent for instance, at paragraph 41 it is alleged that the 1st Respondent doctored medical records. It was contended that this would ordinarily amount to forgery and fabrication which is a criminal offence but there is no record that these offences were reported to the appropriate authorities.
11. It was submitted that the petition does not raise any constitutional issue relying on Wahome -vs- Attorney General & 2 others (Petition E277 of 2020) [2021] KEHC 73 (KLR) where the court defined a Constitutional issue thus;
“…. broadly speaking, a constitutional issue is, therefore, one which confronts the various protections laid out in a constitution. Such protections may be in respect to the Bill of Rights or the Constitution itself. In any case, the issue must demonstrate the link between the aggrieved party, the provisions of the Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement. In the words of Langa, J in Minister of Safety & Security v Luiters, (2007) 28 ILJ 133 (CC): -… When determining whether an argument raises a constitutional issue, the Court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the Court to consider constitutional rights and values…”
12. It was submitted that a detailed scrutiny of the petition reveals that it is nothing but a civil dispute disguised as a Constitutional petition. That an elaborate scrutiny of the prayers sought and grounds in the supporting affidavit should reveal to this Court that the crux of the dispute is the internal affairs and management of the company by the name Makindu Medical Centre Limited and that there is nothing constitutional about the dispute.
13. As to whether the Court has jurisdiction to hear and determine employee-employer disputes, it was submitted that the Employment and Labour Relations Court is established pursuant to Article 162 (2) (a) of the Constitution to hear and determine disputes relating to employment and labor relations. That the Employment and Labour Relations Court Act, No. 20 of 2011 operationalizes the Court and section 12 (1) thereof outlines the jurisdiction of the Court.
14. It was submitted that the Petitioners’ claim is a dispute relating to or arising out of employment between an employer and an employee because; i) according to the heading of the petition, one of the substantive laws of the dispute is section 4 and 5 of the Labour Relations Act which is one of the main substantive statutes that govern the Employment and Labour Relations Court. That any dispute based on this Act falls within the jurisdiction of the ELRC court. ii) prayer VII of the Petition seeks the declaration of Respondents as employees of the 2nd Interested Party hence this Court is being called to determine employment status. It was contended that such a prayer should be directed to the ELRC court.
15. In conclusion, this court was urged to uphold the P.O and dismiss the petition with costs to the 1st Respondent.
16. In opposition of the P.O the Petitioners & Interested Parties in their submissions argued the following issues for determination;
a) Whether the P.O is merited and /or meets the criteria for a preliminary objection.
b) Whether the petition satisfies the criteria for a constitutional petition.
c) Whether this court is seized with jurisdiction to hear and determine the petition.
d) Who should bear the costs of this application?
17. On the first issue, they relied on Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696 where the court defined a P.O;
“a preliminary objection is in the nature of what used to be a demurer. It raises a pure point of law which is urged on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
18. On the nature of a P.O, they cited Mbarak Mbaja [2005] eKLR for the submission that it should be a pure point of law which must not be blurred with factual details liable to be contested and proved through a process of evidence; and on Margaret Wairimu Kariuki -vs- John Waweru Kabiru [2021] eKLR where the court stated;
“for the court to determine whether the issues herein were directly and substantially in issue with the other suit, it is the court’s considered view that it will have to ascertain and probe evidence ascertaining whether the issues raised in the instant suit are the same as the ones in the appeal aforesaid and further interrogate the prayers sought whether they are the same and relate to the same issues. On whether or not the same are sub-judice, facts have to be ascertained and a preliminary objection cannot be raised on disputed facts. Therefore, this court holds and finds that what has been raised by the 1st respondent does not amount to a preliminary objection and thus the preliminary objection is not merited.”
19. It was submitted that in order for this court to ascertain whether the petitioners have raised labor issues, it will have to delve to the pleadings and address matters of fact which clearly removes the P.O from pure points of law into the realm of facts. They supported this with Independent Electoral and Boundaries Commission v. Jane Cheperemger & 2 Others [2015] eKLR, Joel Kendwiyo v. District Criminal Investigations Officer Nandi & 4 Others [2019] eKLR, and Patrick [2021] for the submission that a P.O should not be used as sword to win a case and deny the Petitioner an opportunity to be heard on merit.
20. As to whether the petition meets the criteria of a constitutional petition, it was submitted that the petition chronicles a series of commercial disputes and misunderstandings between the directors of the 2nd Interested Party which have resulted in constitutional violations against the Petitioners. That the violations range from refusal to sign suppliers and salary cheques for employees, siphoning of hospital materials, alteration of theatre attendance registers, altercations in theatre in the glare of the public, harassment and intimidation of staff expressing dissenting opinions among other violations. It was contended that the violations have not only affected the Petitioners’ right to earn a livelihood but also the right of patients and community of interest to access essential medical service from the 2nd Interested Party.
21. The Petitioners relied on Rules 4 and 10 of the Mutunga Rules for the submission that the Petitioners’ pleadings have met the criteria for a constitutional petition by among others; setting out the facts relied on in precision, citing the specific constitutional provisions infringed as well as the injuries sustained by the Petitioners and community of interest.
22. The Petitioners cited South African Constitutional Court in Frederick & Others -vs- MEC for Education and Training Eastern Cape & Others (2002) 23 ELJ. 81(CC) where the court stated;
“The Constitution provides no definition of constitutional matter ‘what is a constitutional matter must be cleared from a reading of the constitution itself’ if regard has to be had to the provisions…constitutional matters must include disputes as to whether any law or conduct is inconsistent with the constitution as well as issues concerning the status, powers and functions of an organ of the state… the interpretation, application and upholding of the constitution are also constitutional issues…the jurisdiction vested in the constitutional court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…when determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider constitutional rights and values...” (emphasis is mine)
23. Further reference was made to Kenya National Commission on Human Rights -vs-Attorney General, Independent Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR where the court stated;
“the court must always consider whether the party seeking to move it falls within the categories of parties decreed as having such standi by the constitution.”
24. As to whether this court has jurisdiction to hear and determine the petition, it was submitted that a close scrutiny of the pleadings reveals that the root and genesis of the cause of action is a commercial dispute involving the directors of the 2nd Interested Party which has spilled over to the employees particularly in their desperate attempt to reconcile the directors and salvage the going concern status of the 2nd Interested Party in order to salvage their employment.
25. It was submitted that the 1st Respondent has perceived a substantial number of the Petitioners to owe allegiance to the 1st Interested Party and has reacted by engaging in conduct which infringes upon and tramples down their constitutional rights. That this suit is a classic example of a cocktail cause of action in which this court is invited to apply the pre-dominant purpose rule rather than adopting the simple approach of disclaiming jurisdiction with resultant costs, delays, hardship and inconvenience to the parties. The court was referred to Suzanne Achieng Butler & 4 Others -vs- Redhill Investments Ltd & Anor (2016) eKLR where the court stated;
“When faced with a controversy whether a particular case is a dispute about land (which should be litigated at ELC) or not, the courts utilize the pre-dominant purpose test. In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land but the High Court has jurisdiction if it is predominantly for the provision of goods, construction or works. The court must first determine whether the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale or land or in this case, the construction of a town house.”
26. The Petitioners submit that the approach has been upheld severally by the Supreme Court and the Court of Appeal as demonstrated in Benson Makori Makworo v Nairobi Metropolitan Services & 2 others[2022] KEHC 26937 (KLR),John Ngimor & 554 others v Northern Rangelands Trust & 3 others [2021] KEELC 3840 (KLR) and Republic -vs- Chairman Business Premises Rent Tribunal & David Wakahu Ng’ang’a ex-parte Carrington Complex Ltd [2019] eKLR.
27. This court was invited to consider that there is a related matter namely HCCOM No. E003 of 2024 involving the Respondents and the 1st Interested Party where it has already indicated that it is seized of jurisdiction. That the root causes of the dispute are related but the Petitioners are not parties to that dispute for want of locus.
28. Further, this court was invited to consider the overriding objectives under sections, 1A, 1B and 3A of the Civil Procedure Act namely the necessity for efficient, affordable and cost-effective approach by the court in resolution of disputes.
29. It was contended that upholding the P.O would be an affront to the overriding objective of the statute as it would be calling upon the petitioners to file another matter at the ELRC while another matter with the same underlying causes of action remains before this court. That it will result in undue inconvenience and costs to the Petitioners.
30. This court was also invited to consider that it has already referred parties to mediation which they attended on at least 4 occasions and concluded... That the action in itself amounted to exercise of jurisdiction over the matter. That if the court disclaims jurisdiction at this stage, it will render the mediation proceedings a nullity retrospectively and occasion a miscarriage of justice to the Petitioners.
31. As to who should bear the costs of the application, reference was made to section 27 of the Civil Procedure Act for the submission that costs follow the event.
Analysis & Determination
32. Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696 is the locus classicus on the threshold of a P.O. The Court of Appeal stated that;
“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit….
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.”
33. It is therefore well settled that a P.O must not be blurred with factual details needing to be established through the process of evidence.
34. The first ground in the P.O is that the Petition lacks specificity and substantiation of the alleged violations. The locus classicus, Anarita Karimi Njeru (supra) and many other authorities determined thereafter, require constitutional petitions to be framed precisely. A petitioner is expected to state the complaint, the constitutional provision that is alleged to be violated and the manner of violation. Additionally, Rule 4(2) of the Mutunga Rules provide that;
“The petition shall disclose the following
a) the petitioner’s name and address;
b) the facts relied upon;
c) the constitutional provision violated;
d) the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;
e) details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;
f) the petition shall be signed by the petitioner or the advocate of the petitioner; and
g) the relief sought by the petitioner.”
35. In this matter paragraph 46 of the Petition makes reference to the provisions of Articles 22, 23, 25, 33, 36, 41 and 43 of the Constitution. These same articles are contained in the heading of the Petition. A look at the body of the Petition reveals that the Petitioners have not specifically stated how their rights under the said Articles have been infringed by the Respondents or the injury that has resulted or is expected to result from the infringement.
36. Paragraph 47 of the petition states that the 1st Respondent has contravened chapter 6 of the Constitution of Kenya as read with Article 232 and 259(1) thereof as pertains integrity, national values and principles. Chapter 6 of the Constitution is on leadership and integrity for state officers, Article 232 is on public service and Article 259 is on interpretation of the Constitution.
37. The Constitution defines a State Officer’ as a person holding a state office and further provides that a ‘state office’ means any of the following offices; President, Deputy President, Cabinet Secretary, Member of Parliament, Judges & Magistrates, member of a commission to which Chapter Fifteen applies, holder of an Independent Officer to which Chapter Fifteen applies, member of a county assembly, governor or deputy governor of a county or other member of the executive committee of a county government, Attorney General, Director of Public Prosecutions, Secretary to the Cabinet, Principle Secretary, Chief of the Kenya Defence Forces, commander of a service of the Kenya Defence Forces, Director General of the National Intelligence Service, Inspector General and Deputy Inspectors General of the National Police Service or an office established and designated as a State Office by national legislation.
38. The licence of the 2nd Interested Party (the hospital) shows that it is a private medical institution and the Petitioners have not demonstrated the state office being held by the Respondents as well as the specific provisions that have been violated. The Petitioners have made reference to full chapters of the Constitution hence falling short of the requirement of precision.
39. Some of the particulars of injuries given in the petition relate to the hospital itself and not the Petitioners and there is no demonstration of the nexus between the alleged violation of rights by the Respondents and resultant loss to the Petitioners. For example, loss of image and reputation of the Hospital has been particularized as a loss but the Petitioners have not demonstrated the specific right which has been violated by alleged loss.
40. The Petitioners have also alleged that the 1st Respondent siphoned millions of shillings through fabricated, doctored and bogus entries in the staff theatre attendance book. This allegation borders on the criminal offence of obtaining by false pretenses/stealing yet there is no evidence of such a case against the 1st Respondent. In short, it is evident that the petition lacks specificity and substantiation of the alleged violations.
41. The totality of this matter is that it emanates from a commercial dispute whose aftermath is the alleged violation of the rights of the employees of the subject hospital. The allegation of violations of rights of patients (the public interest) has not been demonstrated on the face of the petition.
42. This court does not need to delve into the facts of this case to determine what has been pointed out in the P.O. The pleadings as they are, on their face demonstrate the paucity of any supporting evidence that this is a Constitutional Petition. They do not on their face invite this court, nay force it to constitutional dispute. It is a commercial dispute as clearly indicated by counsel, and what stand s out are the labour and employment issues as will have demonstrated hereunder…
43. The second ground in the P.O is that this Court Lacks Jurisdiction to hear and determine the Petition as the subject matter is a civil dispute of the nature of an employee-employer dispute which is within the jurisdiction of the Employment and Labour Relations Court.
44. It has been readily admitted by the Petitioners that the genesis of the petition is a dispute among the directors of the hospital which has spilled over to the employees (petitioners) and that the employees have tried to reconcile them in a desperate attempt to salvage the hospital and their employment.
45. Having read the petition and affidavit in support, it is clear that a lot of the grievances by the Petitioners are directed to the 1st Respondent who is one of the directors of the hospital. The grievances include interference with the human resource functions of the hospital e.g. intimidating, abusing and threatening the employees, causing disturbance at the hospital, conflict of interest etc. This court has also been called upon to determine the employment status of the Respondents and from the heading of the petition, the dispute is based on sections 4 and 5 of the Labor Relations Act. These provisions state as follows:
4. Employee’s right to freedom of association
(1) Every employee has the right to—
(a)participate in forming a trade union or federation of trade unions;
(b)join a trade union; or
(c)leave a trade union.
(2) Every member of a trade union has the right, subject to the constitution of that trade union to—
(a)participate in its lawful activities;
(b)participate in the election of its officials and representatives;
(c)stand for election and be eligible for appointment as an officer or official and, if elected or appointed, to hold office; and
(d)stand for election or seek for appointment as a trade union representative and, if elected or appointed, to carry out the functions of a trade union representative in accordance with the provisions of this Act or a collective agreement.
(3) Every member of a trade union that is a member of a federation of trade unions has the right, subject to the constitution of that federation to—
(a)participate in its lawful activities;
(b)participate in the election of any of its office bearers or officials; and
(c)stand for election or seek for appointment as an office bearer or official and, if elected or appointed, to hold office.
5. Protection of employees
(1) No person shall discriminate against an employee or any person seeking employment for exercising any right conferred in this Act.
(2) Without limiting the general protection conferred by sub-section (1), no person shall do, or threaten to do any of the following—
(a)require an employee or a person seeking employment not to be or become a member of a trade union or to give up membership of a trade union;
(b)prevent an employee or person seeking employment from exercising any right conferred by this Act or from participating in any proceedings specified in this Act;
(c)dismiss or in any other way prejudice an employee or a person seeking employment—
(i)because of past, present or anticipated trade union membership;
(ii)for participating in the formation or the lawful activities of a trade union;
(iii)for exercising any right conferred by this Act or participating in any proceedings specified in this Act; or(iv)for failing or refusing to do something that an employee may not lawfully permit or require an employee to do.
(3) No person shall give an advantage, or promise to give an advantage, to an employee or person seeking employment in exchange for the person not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act:
Provided that nothing in this section shall prevent the parties to a dispute from concluding an agreement to settle that dispute.
46.
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