ISAAC SIKO NYAKERIGA VS KISII COUNTY CHIEF OFFICER FINANCE AND KISII COUNTY SECRETARY AND 3 Others

The ex-parte applicant filed the ex-parte  notice of motion  dated 21.6.24 seeking leave to file Judicial review proceedings in the nature of mandamus to compel the respondent to comply with the judgment in Kisii ELRC NO. E033 of 2021 dated 18.10.23 to wit ; compel the 3^rd respondent to reinstate the ex-parte applicant in the payroll and to issue him with a personal number . To compel the 1^st respondent to pay him salary arrears.

The threshold for leave to file   judicial review proceedings was laid down  in the case of    Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 where it was held as follows: “The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”. It is clear that at this stage the court has to determine whether the applicant has an arguable case before granting leave to file the substantive motion.The Main issue of determination is whether this court has Jurisdiction to hear and determination of the instant application and the intended application of Judicial review  Nyarangi, JA (as he then was) had this to say regarding the issue of Jurisdiction in the case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1;

“…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.” Republic vs. Karisa Chengo & 2 Others [2017] eKLR, the Supreme Court held as follows:

“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of 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 like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the 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 both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

In Kibos Distillers Limited & 4 others vs. Benson Ambuti Adega & 3 others [2020] eKLR, the Court of Appeal held as follows:

“A party or litigant cannot be allowed to confer jurisdiction on a Court or oust jurisdiction of a competent organ through the art and craft of drafting pleadings. Even if a Court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause that ousts the jurisdiction of other competent organs. Neither is original jurisdiction an inclusive clause that confers jurisdiction on a Court or body to hear and determine all and sundry disputes. Original jurisdiction only means the jurisdiction to hear specifically constitutional or legislatively delineated disputes of law and fact at first instance. To this end, I reiterate and affirm the dicta in Speaker of the National Assembly v. James Njenga Karume [1992] eKLR where it was stated that where there is a clear procedure for the redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

1. Article  165 of the constitution provides that -

(5) The High Court shall not have jurisdiction in respect of matters— (b) falling within the jurisdiction of the courts contemplated in Article 162 (2). Article 162 of the Constitution provides that ‘’ 162. (1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2). (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) employment and labour relations; and (b) the environment and the use and occupation of, and title to, land. (3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2) ‘’.

It is clear that the said Article bars the High Court from usurping the jurisdiction  of the courts of equal status . the instant application seeks leave to enforce an order of the employment and labour relations court . There  are  duly  established Employment and Labour Relations Courts  of Equal status with the High court and hence this application ought to have been filed there.

This court therefore has no Jurisdiction to deal with issues raised in this Application    and therefore it shall proceed to down its tools as was held in the celebrated case of Lilian S  vessel (Supra )I thus proceed to strike out  the application dated 21.6.24It is so ordered. File is closed.