1. The Petitioner lodged a Motion dated 4th September, 2024, which was certified urgent and fixed for hearing interparties on 23rd September, 2024. The Respondents filed a Notice of Preliminary Objection dated 20th September, 2024, which was heard on 23rd September, 2024, instead of the application, and the ruling herein is in relation to the said preliminary objection.
2. The Respondents’ objection revolves around the following issues:
i. That the Applicant/Petitioner has not complied with the express requirements of Rule 49 of the Employment and Labour Relations Court (Procedure) Rules;
ii. That disputes relating to recruitment, selection, nomination and appointment of employees and advertisement of jobs is not an employment and Labour relations issue, hence this court does not have jurisdiction to entertain the suit;
iii. That the issues raised in the petition fall within the jurisdiction of the High Court established under Article 165(3) of the Constitution and not in any other Court, hence the proceedings herein have been instituted in the wrong forum;
iv. That the Applicant/Petitioner is not an employee, employer, trade union, employer’s organization and thus has no employment or labour relationship with any of the Respondents, and does not therefore have locus to institute this suit;
v. That the petition offends the doctrine of exhaustion in view of Articles 234 (2)(i) and 159 (2) of the Constitution, Section 77 of the County Government Act and Sections 85 and 87 of the Public Service Commission Act, 2017.
3. The Petitioner/Applicant did not respond to the objection. Parties urged the objection orally on 23rd September, 2024.
4. The Respondents argue that the Petitioner does not have locus since he does not fall within the category of persons listed under Section 12 of the Employment and Labour Relations Court Act, who are the only persons who can move the court.
5. It is the Respondents’ assertion that there is no employer-employee relationship between the parties herein, hence the court does not have jurisdiction to entertain this suit. They argue that the provisions of Article 234(2)(i) of the Constitution, Section 77 of the County Government Act and Sections 85 and 87 of the Public Service Commission Act, are pointers that jurisdiction of this court is ousted in the first instance.
6. It is the Respondents’ position that the Petitioner has not given a single name of an officer being terminated vide the impugned advertisement. It is their assertion that Petition No. E030 of 2024 between Philip Otieno Mala and Migori County was filed earlier, and that the said petition speaks to the same issues raised herein.
7. The Respondents pray that the preliminary objection is allowed and the court downs its tools.
8. The Petitioner opposed the objection and argued that the Supreme Court in the case of Dande & 4 others v Inspector General, National Police Service & 2 others entrenched Judicial review making this court capable of determining constitutional rights matters. He argues further that Article 162 (2)(a) bestows on this court the status of a High Court with jurisdiction to hear issues of violations of constitutional rights.
9. The Petitioner further argues that Section 11 (a)(b) of the Fair Administrative Actions Act carries provisions that allow this court to issue interlocutory orders.
10. It is the Petitioner’s position that this court has jurisdiction to entertain this petition. He avers that Articles 3, 22 and 258 of the Constitution entitles any person to institute proceedings aimed at upholding the Constitution, both on his own behalf and in the public interest.
Analysis and Determination
11. I have considered the Preliminary Objection and the oral submissions by both parties. The following two issues fall for determination:
i. Whether the Petitioner has locus to institute this suit
ii. Whether the court is clothed with jurisdiction to hear and determine the petition and motion in the first instance
Whether the Petitioner has locus to institute this suit
12. The Respondents’ argument is that the Petitioner is not an employee of the Respondents and does not have an employment or labour relationship with the Respondents, and has thus no locus to institute the suit herein. The Petitioner’s position is that he acts in the public interest and which has the backing of the law.
13. Articles 3 and 22 of the Constitution states:
“(3) “(1) Every
person has an obligation to respect, uphold and defend this Constitution.”
(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.”
14. The Court notes that the Petitioner as correctly submitted by the Respondents does not have a direct interest in the issues subject of the petition herein. This court is however alive to the place of public interest litigation as a useful tool of social change.
15. In the premise, the Constitutional provisions cited herein, no doubt bestow upon the Petitioner the right to file suit in the public interest. I thus find no fault in the institution of this petition on the basis solely of the Petitioner not having a direct interest in the issues giving rise to the petition.
16. The proposition that the Petitioner lacks locus thus, does not hold.
17. On the issue of non-compliance with the requirements of Rule 49 of the Employment and Labour Relations Court (Procedure) Rules, I note that the Rules were gazetted in August, 2024 and although Rule 49 is couched in mandatory terms, rules have been said to be hand maidens of justice and are not there to stifle access to justice.
18. In the premise, and with Article 159 in mind, I will be slow to strike out a motion based solely on the fact that the Applicant did not file submissions together with the application.
Whether the court is clothed with jurisdiction to hear and determine the petition and motion in the first instance
19. It is the Respondents’ assertion that the petition herein offends the doctrine of exhaustion in view of Articles 234 (2)(i) and 159 (2) of the Constitution, Section 77 of the County Government Act and Sections 85 and 87 of the Public Service Commission Act.
20. Under the motion and petition, the Petitioner seeks conservatory orders suspending a job advertisement placed by the Respondents in the standard newspaper of 21st August 2024. It would then be right to say that the issue subject of the motion and petition is recruitment to fill positions in the county public service of Migori.
21. The question is whether such is a matter that is within the purview of the Public Service Commission, and for which an appeal to the Commission is a prerequisite before the jurisdiction of the Court can be invoked.
22. Jurisdiction they say is everything, and without which a court must down its tools. (See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR)
23. Section 85 of the Public Service Commission Act, 2017 states thus:
“The Commission shall, in order to discharge its mandate under Article 234 (2) (i) of the Constitution, hear and determine appeals in respect of any decision relating to engagement of any person in a County Government, including a decision in respect of-
(a) recruitment, selection, appointment and qualifications attached to any office;
(b) remuneration and terms and conditions of service;
(c) disciplinary control;……”
24. Further, Section 77 of the County Government Act provides as follows: -
“(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 of—
(a) recruitment, selection, appointment and qualifications attached to any office; (emphasis own)
(b) remuneration and terms and conditions of service;
(c) disciplinary control…..”
25. From the pleadings, it is clear that the Petitioner is dissatisfied with the manner in which the Respondents are conducting recruitment in the county government of Migori. Recruitment by the foregoing provisions of the law is a matter subject of the appellate mandate of the PSC, which brings us to the question of whether the Petitioner could validly bypass the alternative remedy and directly lodge a petition before this court.
26. It is now settled that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure ought to strictly be followed. (see the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR).
27. I am clear in my mind that a question concerning recruitment and selection is an employment issue which squarely falls within the jurisdiction of this court contrary to the Respondents’ submission. The issue however is on the compliance with the alternative remedy which the Petitioner has not attempted complying with, and for which I do not find reason to exempt him from the obligation to exhaust. (See Kenya Revenue Authority & 2 others v Darasa Investments ltd [2018] eKLR)
28. In the premise, I find and hold that the motion and petition as filed violate the doctrine of exhaustion and the court declines jurisdiction. I proceed to strike out both the motion and the petition in entirety.
29. The petition having been filed in the public interest, I make no orders on costs.
30. Orders accordingly.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 26TH DAY OF SEPTEMBER, 2024.
C. N. BAARI
JUDGE
Appearance:
Mr. Ougo present for the Petitioner/Applicant
Ms. Achieng present for the Respondents
Ms. Anjeline Wanjofu - C/A
2. The Respondents’ objection revolves around the following issues:
i. That the Applicant/Petitioner has not complied with the express requirements of Rule 49 of the Employment and Labour Relations Court (Procedure) Rules;
ii. That disputes relating to recruitment, selection, nomination and appointment of employees and advertisement of jobs is not an employment and Labour relations issue, hence this court does not have jurisdiction to entertain the suit;
iii. That the issues raised in the petition fall within the jurisdiction of the High Court established under Article 165(3) of the Constitution and not in any other Court, hence the proceedings herein have been instituted in the wrong forum;
iv. That the Applicant/Petitioner is not an employee, employer, trade union, employer’s organization and thus has no employment or labour relationship with any of the Respondents, and does not therefore have locus to institute this suit;
v. That the petition offends the doctrine of exhaustion in view of Articles 234 (2)(i) and 159 (2) of the Constitution, Section 77 of the County Government Act and Sections 85 and 87 of the Public Service Commission Act, 2017.
3. The Petitioner/Applicant did not respond to the objection. Parties urged the objection orally on 23rd September, 2024.
4. The Respondents argue that the Petitioner does not have locus since he does not fall within the category of persons listed under Section 12 of the Employment and Labour Relations Court Act, who are the only persons who can move the court.
5. It is the Respondents’ assertion that there is no employer-employee relationship between the parties herein, hence the court does not have jurisdiction to entertain this suit. They argue that the provisions of Article 234(2)(i) of the Constitution, Section 77 of the County Government Act and Sections 85 and 87 of the Public Service Commission Act, are pointers that jurisdiction of this court is ousted in the first instance.
6. It is the Respondents’ position that the Petitioner has not given a single name of an officer being terminated vide the impugned advertisement. It is their assertion that Petition No. E030 of 2024 between Philip Otieno Mala and Migori County was filed earlier, and that the said petition speaks to the same issues raised herein.
7. The Respondents pray that the preliminary objection is allowed and the court downs its tools.
8. The Petitioner opposed the objection and argued that the Supreme Court in the case of Dande & 4 others v Inspector General, National Police Service & 2 others entrenched Judicial review making this court capable of determining constitutional rights matters. He argues further that Article 162 (2)(a) bestows on this court the status of a High Court with jurisdiction to hear issues of violations of constitutional rights.
9. The Petitioner further argues that Section 11 (a)(b) of the Fair Administrative Actions Act carries provisions that allow this court to issue interlocutory orders.
10. It is the Petitioner’s position that this court has jurisdiction to entertain this petition. He avers that Articles 3, 22 and 258 of the Constitution entitles any person to institute proceedings aimed at upholding the Constitution, both on his own behalf and in the public interest.
Analysis and Determination
11. I have considered the Preliminary Objection and the oral submissions by both parties. The following two issues fall for determination:
i. Whether the Petitioner has locus to institute this suit
ii. Whether the court is clothed with jurisdiction to hear and determine the petition and motion in the first instance
Whether the Petitioner has locus to institute this suit
12. The Respondents’ argument is that the Petitioner is not an employee of the Respondents and does not have an employment or labour relationship with the Respondents, and has thus no locus to institute the suit herein. The Petitioner’s position is that he acts in the public interest and which has the backing of the law.
13. Articles 3 and 22 of the Constitution states:
“(3) “(1) Every
person has an obligation to respect, uphold and defend this Constitution.”
(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.”
14. The Court notes that the Petitioner as correctly submitted by the Respondents does not have a direct interest in the issues subject of the petition herein. This court is however alive to the place of public interest litigation as a useful tool of social change.
15. In the premise, the Constitutional provisions cited herein, no doubt bestow upon the Petitioner the right to file suit in the public interest. I thus find no fault in the institution of this petition on the basis solely of the Petitioner not having a direct interest in the issues giving rise to the petition.
16. The proposition that the Petitioner lacks locus thus, does not hold.
17. On the issue of non-compliance with the requirements of Rule 49 of the Employment and Labour Relations Court (Procedure) Rules, I note that the Rules were gazetted in August, 2024 and although Rule 49 is couched in mandatory terms, rules have been said to be hand maidens of justice and are not there to stifle access to justice.
18. In the premise, and with Article 159 in mind, I will be slow to strike out a motion based solely on the fact that the Applicant did not file submissions together with the application.
Whether the court is clothed with jurisdiction to hear and determine the petition and motion in the first instance
19. It is the Respondents’ assertion that the petition herein offends the doctrine of exhaustion in view of Articles 234 (2)(i) and 159 (2) of the Constitution, Section 77 of the County Government Act and Sections 85 and 87 of the Public Service Commission Act.
20. Under the motion and petition, the Petitioner seeks conservatory orders suspending a job advertisement placed by the Respondents in the standard newspaper of 21st August 2024. It would then be right to say that the issue subject of the motion and petition is recruitment to fill positions in the county public service of Migori.
21. The question is whether such is a matter that is within the purview of the Public Service Commission, and for which an appeal to the Commission is a prerequisite before the jurisdiction of the Court can be invoked.
22. Jurisdiction they say is everything, and without which a court must down its tools. (See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR)
23. Section 85 of the Public Service Commission Act, 2017 states thus:
“The Commission shall, in order to discharge its mandate under Article 234 (2) (i) of the Constitution, hear and determine appeals in respect of any decision relating to engagement of any person in a County Government, including a decision in respect of-
(a) recruitment, selection, appointment and qualifications attached to any office;
(b) remuneration and terms and conditions of service;
(c) disciplinary control;……”
24. Further, Section 77 of the County Government Act provides as follows: -
“(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 of—
(a) recruitment, selection, appointment and qualifications attached to any office; (emphasis own)
(b) remuneration and terms and conditions of service;
(c) disciplinary control…..”
25. From the pleadings, it is clear that the Petitioner is dissatisfied with the manner in which the Respondents are conducting recruitment in the county government of Migori. Recruitment by the foregoing provisions of the law is a matter subject of the appellate mandate of the PSC, which brings us to the question of whether the Petitioner could validly bypass the alternative remedy and directly lodge a petition before this court.
26. It is now settled that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure ought to strictly be followed. (see the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR).
27. I am clear in my mind that a question concerning recruitment and selection is an employment issue which squarely falls within the jurisdiction of this court contrary to the Respondents’ submission. The issue however is on the compliance with the alternative remedy which the Petitioner has not attempted complying with, and for which I do not find reason to exempt him from the obligation to exhaust. (See Kenya Revenue Authority & 2 others v Darasa Investments ltd [2018] eKLR)
28. In the premise, I find and hold that the motion and petition as filed violate the doctrine of exhaustion and the court declines jurisdiction. I proceed to strike out both the motion and the petition in entirety.
29. The petition having been filed in the public interest, I make no orders on costs.
30. Orders accordingly.
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT KISUMU THIS 26TH DAY OF SEPTEMBER, 2024.
C. N. BAARI
JUDGE
Appearance:
Mr. Ougo present for the Petitioner/Applicant
Ms. Achieng present for the Respondents
Ms. Anjeline Wanjofu - C/A