1. This is a ruling to the Notice of Preliminary Objection dated 6th March 2024 that was lodged by the 1st & 2ndrespondents in opposition of the application for leave to apply for judicial review orders dated 15th January, 2024.
2. The primary dispute is predicated on a dispute relating to the appointment of the 3rd respondent as the acting chairman, Multimedia University and three other appointments to the University’s Council.
The 1st & 2nd Respondent’s case:
3. It is the 1st & 2nd Respondent’s case that the subject matter of the application regards the appointment powers of the 4th respondent.
4. They believe that the appointment gives rise to an employer employee relationship which is within the exclusive jurisdiction of the Employment and labour relations court (ELRC) and this court therefore has no jurisdiction.
5. They argue that the Supreme Court held that the ELRC has exclusive jurisdiction to hear this kind of matters; that this court has no jurisdiction to hear and determine the matter and the same should be struck out in limine.
6. They argue that this matter is Sub-judice as the applicants herein have filed a similar application in Nairobi ELRC Petition No. E205 of 2023, Kipkirui Kemboi -vs- Multimedia University of Kenya and others.
7. It is their submission that this is court lacks jurisdiction to hear or determine the Chamber summons application dated 15thMarch 2024.
8. Reliance is placed in the case of Lydia Nyambura Mbugua vs. Diamond Trust Bank Kenya Limited & Another where it was held that:
“...what is important when determining whether the court has jurisdiction, is not so much the purpose of the transaction, but the subject matter or issue before court, for I think that the purpose of the transaction, may at times be different from the issue or subject matter before court That is why I hold the view, that in making a choice of which court to appear before, one needs to find out what the predominant issue in his case is, and not necessarily, the predominant purpose of the transaction...”
9. They assert that the matter is an employment matter for reasons that it regards appointments of the 1st respondent’s University council.
10. The parties substantially involved are all presently and at the time of filing the case, gazetted employees of the 1st respondent.
11. Judicial Review proceedings are special proceedings as Section 8 of the Law Reform Act and Order 53 of the Civil provide for special rules of procedure and jurisdiction for Judicial Review proceedings.And they are excluded from the operation of the Civil Procedure Act, Section 3 of the Civil Procedure Act CAP 21 provides that: -
“In the absence of any specific provision to the contrary, nothing in this Act shall limit or otherwise affect any special jurisdiction or power conferred, or any special form or procedure prescribed, by or under any other law for the time being in force”
12. This court`s supervisory jurisdiction is limited to judicial review matters. We urge this court to dismiss the application as hearing it would amount to this court arrogating itself jurisdiction.
14. It is their case that the Court with competent jurisdiction to listen to this matter is the Employment and Labour Relations Court. Article 162(2) and (3) of the Constitution of Kenya, 2010 provides as follows: -
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) Employment and labour relations....
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
15. The Employment and Labour Relations Court is as provided under Section 12 (1)(a)
“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 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;”
16. Reliance is placed in the case of Owners of Motor Vessel “S” v Caltex Oil Kenya ltd (1989) eklr where it was held:
“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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
17. They further submit that the Chamber Summons application dated 15th March 2024 is Sub-judice. Section 6 of the Civil Procedure act CAP 21 defines Sub-judice in the following terms;
“6. Stay of suit
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
18. There is a pending suit in ELRC Petition No. E205 of 2023, Kipkurui Kemboi -vs- Multimedia University and others.as a result of which the Chamber Summons application dated 15th March 2024 is Sub-Judice for reasons that there exists a matter presently before the Employment and labour relations court between the same parties; where the same facts have been pleaded; regarding the same Subject matter; and wherein similar prayers have been sought.
19. Reliance is placed in the Court of Appeal in Civil Appeal No. 83 of 2017 Joel Kenduiywo vs District Criminal Investigation Officer Nandi & 4 Others (2019) eKLRwhere the court held as follows: -
“Section 6 of the Civil Procedure Act is meant to prevent abuse of the court of process where parallel proceedings are held before two different courts with concurrent jurisdictions or before the same court at different times. This is to obviate a situation where two courts of concurrent jurisdiction arrive at different decisions on the same facts, evidence and cause of action.”
20. They urge the court to stay the proceedings herein as mandated by Section 6 of the Civil Procedure Act CAP 21.
The 4th and 5th respondents filed their submissions dated 20thMarch 2024 and regurgitated the 1st and 2nd respondents submissions.
The Ex Parte Applicant’s Case;
25. It is the Exparte Applicant’s case that, it is a trite law that a Preliminary Objection can only be raised by a respondent or defendant, usually at the preliminary stage of a suit on points of law only. If the preliminary objection is successful, the suit collapses.
26. The Supreme Court in Independent Electoral & Boundaries Commission -v- Jane Cheperenger & 2 Others [2015] eKLR clarified that in determining a Preliminary Objection, focus should be placed on both the purpose as well as the nature of the preliminary objection. It stated:
"The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objectionagainst profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement.
The Court went ahead to state that: It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”...............thereis also the rider and caution that disputes are better off being resolved judicially, than summarily.
29. He argues that the Respondents have not attached a Pay slip, appointment letter or human resources policy showing that indeed the 3rd respondent is employed, remunerated or is directly supervised by the 4threspondent.
Apart from the 3rd respondent, there are other members of the 1st respondent council appointed under Section 36 (1,b,c) of the Universities Act namely; the Principal Secretaries responsible for University Education and Finance, and who cannot be said to be employees of the 4threspondent.
The two Principal Secretaries sit in the council courtesy of the Universities Act. The 4th respondent statutory duty is to constitute a governing council for the 1st respondent, a chartered public university funded by public funds and not to employ.
30. He relies in Josphat K. Z. Mwatelah v Technical University of Mombasa Council & 2 others [2017] eKLR on appointment of Vice Chancellor and Council members when Hon Justice Onesmus Makau stated that
“The termination letter by the CS to the claimant was done ultra vires and cannot find any basis either in law or the contract of employment.
31. The 1st respondent is chartered public university, which in essence, is a chartered company and the council members are equivalent of the board of directors.
32. He also relies on the case of David Randu v Malindi Water Sewerage Company Ltd [2013] eKLR, Hon Justice Onesmus Makau was urged to consider the English case of Eaton V Robert Eaton Ltd & Another [1988] IRIR 83 which laid down the following tests to be applied while determining whether a director is an employee or not:
(a) Did the director have a descriptive titled like marketing director, managing director or sales director?
(b) Was there an express contract of employment, or if not, was there a board minute or memorandum consisting an agreement to employ the director as an employee?
(c) Was remuneration paid by way of salary or directors fees?
(d)Was remuneration fixed in advance or paid on an ad hoc basis?
(e) Was remuneration by way of entitlement or, in effect gratuitous (in other words , was the director in a position to sue for it)?
(f) Did the director merely act in his own capacity as a director or, was he under control of the board of directors in respect of the management of his work?
According to the exparte applicant in the instant case,there is no employer-employee relationship between the 4th respondent and the 3rd respondent or even the 2nd respondent.
33. Having considered the test as set in Eaton's, Hon Justice Onesmus Makau turned to section 2 of the Employment Act which defines an employee as a person who is employed for wages or salary, and found that the claimant was
“Not an employee of the respondent. He did not have a descriptive title like managing director, sales director or at all. He did not also have an express contract of employment or minute or memorandum by the board of directors appointing him as an employee”.
34.On The Issue of Jurisdiction the Applicant relies in the case of Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9, or the GCHQ case, Lord Diplock has suggested a three-fold classification of the various grounds on which an administrative decision can be reviewed by a Court and these are: Irrationality; Procedural impropriety; Illegality and unlawfully delegating power or fettering discretion.
36 It is the Applicants case that the issue before this court is irrationality; procedural impropriety; illegality and unlawfully delegating power or fettering discretion by the 4threspondent; that is failure and or refusal of the 4threspondent to fulfill a statutory duty of appointing to office a chairman of the 1st respondent council as provided by the law.
37. The Ex-parte Applicant agrees with the 4th and 5threspondents in paragraph 6 of their submissions and especially in the cited case of Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited that the subject matter or issue before court is important when determining whether the court has jurisdiction.
38. In the Supreme Court decision in Consolidated Petition No E002 of 2023, he is ask this court to distinguish the same as the instant application is not about employer-employee relation but issues pointing to failure or refusal to perform a constitutional and statutory duty, irrationality, procedural impropriety and illegality by the 4th respondent and by extension the 3rd respondent.
39. He refers the court to the case of Pastoli v Kabale District Local Government Council & Others (2008) 2 EA 300 where the court held; “In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...”
40. And Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, the Court of Appeal stated that; “Judicial review is concerned with the decision making process, not with the merit itself; the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether the in making the decision the decision maker took into account relevant matters ordid take into account irrelevant matters...”
And submits that this court has jurisdiction to determine this matter.
41. On the ground of sub judice the Exparte Applicant submits that Nairobi ELRC Petition No E205 of 2023 is petition on abuse of power against several parties including Prof Rosebella Orangi Maranga, who has neither entered appearance nor filed response. This court has jurisdiction to determine the present matter. He wants this court to dismiss the Preliminary Objection with costs.
ANALYSIS AND DETERMINATION:
42. A preliminary objection must be on a point of law. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:
“....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.
At page 701 paragraph B-C Sir Charles Newbold, P. added the following:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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....”
43. This court does not agree with the Exparte Applicants case that, it is trite law that a Preliminary Objection can only be raised by a respondent or defendant, usually at the preliminary stage of a suit on points of law only.
44. Preliminary objections on points of law and questions of the court’s jurisdiction can be raised at any time in the proceedings. Objections on the jurisdiction of the court can even be raised at the appeal level.
45. The question of jurisdiction is well established in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd where the Court pronounced itself as such:
“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Emphasis ours.
46. In the case of Lydia Nyambura Mbugua vs. Diamond Trust Bank Kenya Limited & Another it was held that:
“...what is important when determining whether the court has jurisdiction, is not so much the purpose of the transaction, but the subject matter or issue before court, for I think that the purpose of the transaction, may at times be different from the issue or subject matter before court That is why I hold the view, that in making a choice of which court to appear before, one needs to find out what the predominant issue in his case is, and not necessarily, the predominant purpose of the transaction...”
47. This matter is an employment matter for reasons that it relates to the appointment of the 1st respondent’s University council.
46. The court with competent jurisdiction to listen to this matter is the Employment and Labour Relations Court. Article 162(2) and (3) of the Constitution of Kenya, 2010 provides as follows: -
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) Employment and labour relations....
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
47. The jurisdiction the Employment and Labour Relations Court is as provided under Section 12 (1)(a)
“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 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;”
49. The law on the issue of jurisdiction is settled by the Supreme Court in its decision made on 26th May, 2017 in the case of Republic v Karisa Chengo & 2 others [2017] eKLR in which it upheld this Court's decision that a Judge of the specialized courts of Environment & Land (ELC) and Employment & Labour Relations (ELRC) have no jurisdiction to hear and determine matters reserved for the High Court and vice versa. After extensive analysis of the law, the appointment and swearing in of Judges, the apex Court held:
"It follows from the above analysis that, although the High Court and the specialized Courts are of the same status, as stated, they are different Courts. It also follows that the Judges appointed to those Courts exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. From a reading of the statutes regulating the specialized Courts, it is a logical inference, in our view, that their jurisdictions are limited to the matters provided for in those statutes. Such an inference is reinforced by and flows from Article 165(5) of the Constitution, which prohibits the High Court from exercising jurisdiction in respect of matters “reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the Courts contemplated in Article 162(2)”.
50. It is my finding that the appointment in issue gives rise to an employer employee relationship which is within the exclusive jurisdiction of the Employment and labour relations court (ELRC).This court lacks jurisdiction.
The Second Issue is whether this suit is Sub-Judice;
51. There is a pending suit in ELRC Petition No. E205 of 2023, Kipkurui Kemboi -vs- Multimedia University and others.
52. The E-xparte Applicant does not deny the existence of the High Court Petition.
53. He submitted that Nairobi ELRC Petition No E205 of 2023 is a petition on abuse of power against several parties.
54. Section 6 of the Civil Procedure act CAP 21 defines Sub-judice in the following terms;
“6. Stay of suit
No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
55.Court of Appeal in Civil Appeal No. 83 of 2017 Joel Kenduiywo vs District Criminal Investigation Officer Nandi & 4 Others (2019) eKLR the court held as follows: -
“Section 6 of the Civil Procedure Act is meant to prevent abuse of the court of process where parallel proceedings are held before two different courts with concurrent jurisdictions or before the same court at different times. This is to obviate a situation where two courts of concurrent jurisdiction arrive at different decisions on the same facts, evidence and cause of action.”
56. It is my finding and I so hold that this suit is Sub-judice.
Disposition;
57. Having made the determination that this suit is subjudice and further having found that this court lacks jurisdiction, then the suit shall be transferred to the Employment and labour relations court (ELRC) for hearing and determination.
Order;
1. The Notice of Preliminary Objection dated 6th March 2024 is upheld.
2. The suit is hereby transferred to the Employment and labour relations court (ELRC) for hearing and determination.
3. Costs to the Respondents.