REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT MOMBASA
PETITION NO.E009 OF 2024
WISDOM MWAMBURI KAZUNGU ……………………………….……. PETITIONER
VERSUS
THE CLERK, COUNTY ASSEMBLY TAITA TAVETA ……….…. 1ST RESPONDENT
COUNTY ASSEMBLY OF TAITA TAVETA ………………………. 2ND RESPONDENT
HON. ROSE SHINGIRA …………………………………………… 3RD RESPONDENT
RULING
The matter herein was initially filed at the Mombasa High Court, Petition E035 of 2024. The petitioner filed the petition and a Notice of Motion under Certificate of Urgency. On 3 July 2024, the Mombasa High Court directed parties to attend before the High Court at Voi as the matter fell within its jurisdiction.
On 5 July 2024, the High Court at Voi heard the petitioner on the Notice of Motion dated 3 July 2024 and granted interim orders. The petitioner was directed to serve the respondents and to attend court for directions on 11 July 2024. Upon service, the respondents filed a Notice of Preliminary Objections on the basis that the petitioner had failed to disclose material facts including that there was ELRC Petition No.E008 of 2024 and the court dismissed the same being an abuse of court process. The High Court at Voi directed that;
- I hereby send this file to the Employment and Labour Relations Court in Mombasa for further directions and progress in line with the earlier order issued in that court on the same subject matter.
- The Deputy Registrar of this court will forthwith transmit this file to the ELRC court in Mombasa.
- The matter will be mentioned before the ELRC Judge in Mombasa on 15 July 2024 for directions and any other orders.
- Interim orders are extended until 15 July 2024.
The ruling herein relates to the question of jurisdiction that the court directed the parties to address. The respondents filed a Notice of Preliminary Objections dated 9 July 2024 on the grounds that;
- The application and petition are misconceived and or bad in law and therefore should be dismissed with costs.
- The application and petition are a non-starter and ill-advised as the Orders and prayers sought herein cannot be issued for want of jurisdiction.
- The court is devoid of jurisdiction under the express provisions of Article 165(3), (5), (6) and (7) of the constitution.
- The court is devoid of jurisdiction under the express provisions of Section 12(1) of the Employment and Labour Relations Court Act.
- The court is devoid of jurisdiction under the provisions of Section 87 of the Employment Act.
- The entire suit is bad in law, incompetent, frivolous and vexatious and the same is otherwise an abuse of court process.
For these reasons, the application and petition dated 3 July 2024 ought to be dismissed with costs.
Both parties attended and filed written submissions and made oral submissions.
The respondents submitted that the high court lacks jurisdiction to transfer the file to this court. This is not legally possible as the petition was filed initially at Mombasa High Court and transferred to Voi High Court and the petitioner knew that at the time of filing the petition, he had also moved this court under ELRC Petition No.008 of 2024 which matter was addressed and dismissed for being an abuse of court process. When the petitioner failed to get interim orders at Mombasa High Court, he filed ELRC Petition E008 of 2024 and failed to obtain interim orders. Upon transfer of the matter to Voi High Court, the petitioner was issued with interim conservatory orders upon which he filed a Notice to Withdraw the ELRC Petition No.E008 of 2024.
The respondents brought to the attention of the Voi High Court the fact of the dismissal of the ELRC Petition E008 of 2024 and the court directed that this court should address this petition and give directions.
The withdrawal of ELRC Petition E008 of 2024 was because the petitioner had obtained interim Orders before the Voi High Court.
Section 18 of the Civil Procedure Act only allows a transfer of suit within the same court but not to the Employment and Labour Relations Court. In the case of Equity Bank Limited v Bruce Mutie Mutuky t/a Diani Tour & Travel [2016] eKLR the Court of Appeal held that it is illegal for the High Court to exercise its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. In this case, there is no competent suit that is capable of being transferred. A suit filed before a court without jurisdiction is a nullity.
In the case of Republic v Karisa Kyengo, The Supreme Court held that Article 165(5) of the Constitution precludes the High Court from hearing employment and labour relations matters. There is no room for the Voi High Court to transfer this suit to this court.
The respondents submitted that the matter herein is res judicata. The petitioner filed ELRC Petition E008 of 2024 which was dismissed for being an abuse of the court process. This court has no jurisdiction to re-hear the same matter. The petitioner has engaged in abuse of court process and is forum shopping giving this court its inherent jurisdiction to prevent abuse of its processes by dismissing this petition. The interim orders issued should be dismissed with costs.
In response, the petitioner submitted that the Voi High Court directed the respondents to file responses which was done. The file had been transferred from the Mombasa High Court following the dismissal of ELRC Petition E008 of 2024.
For proper appreciation of the issues before the court, the court must interrogate the Notice of Preliminary Objections filed by the respondents dated 9 July 2024. The jurisdictional question raised in this notice is two-fold. There is reliance on the provisions of Article 165 of the Constitution as driving the High Court with jurisdiction to hear employment and labour relations claims. There is also reliance on Section 12 of the Employment and Labour Relations Court Act. In the case of Philemon Madeda Mwambingu v County Assembly of Taita Taveta & Others Petition No.E006 of 2023 the question of whether there was an employment relationship was addressed with a finding that this was not a matter for the High Court but the same was addressed as a constitutional question. This is not in dispute. The question herein is the cause of action. The complaint by the petitioner is that, as the Speaker for the County Assembly of Taita Taveta and his impeachment, the intended replacement is being undertaken in violation of his constitutional rights. This process is without any basis. As a consequence, the court must interrogate whether a speaker of a County Assembly is an employee. These are facts which can only be ascertained in a full hearing. Whether the same falls within an employment relationship or not, the facts presented cannot be addressed with finality through a preliminary objection.
The petitioner submitted that if the court finds that the petitioner is not an employee, all he is seeking is to litigate the violation of his constitutional rights under the Bill of Rights and hence the matter should be before the High Court whether situated at Mombasa or Voi. This will help the parties to dispose of the preliminary objections.
The petitioner submitted that there is another preliminary objection by the respondents dated 15 July 2024. The issues are changed to a case that this is not a proper petition and should have been filed as a Memorandum of Claim. This is contradictory. On the one hand, the respondents seek to urge the court that there is no jurisdiction to hear this petitioner while seeking to challenge the fact that this is not a Memorandum of Claim. There is a constitutional issue to be addressed and a dismissal of the petition will deny the petitioner a fair chance to be heard on the merits. If the court finds that this is a proper employment dispute, the court is clothed with proper jurisdiction to hear a constitutional petition and hence, the objections by the respondents cannot stand.
The petitioner submitted that concerning the question of res judicata and alleged abuse of the court process, such considerations require a fact-finding and examination of facts to ascertain what the cause of action is in the current petition and the previous suit. These are not matters that can be addressed within a preliminary objection. This court is not encumbered to address the petition before it, and if it is, administratively, the petitioner can be heard by the High Court. The petitioner made an error by going to a different court and properly guided, this court can hear the petition on the merits.
Determination
The issues highlighted by the parties relate to whether this court has jurisdiction to hear and determine this petition; whether the petition is res judicata; and whether this is a proper petition.
It is readily admitted that the petitioner filed Mombasa High Court Petition E035 of 2024 on the basis that as the clerk of the County Assembly of Taita Taveta, by notice dated 1st July 2024, the 1st respondent convened the House Business Committee to remove him from office and make a replacement. The petition is that this process of removal and replacement violates the petitioner’s constitutional rights.
Under the County Assembly Service Act read together with the County Government Act, the petitioner, being the Speaker, of the County Assembly of Taita Taveta, is an appointive position through the provisions of Article Article 178(2) of the Constitution: to preside over the sittings of the County Assembly. See Supreme Court of Kenya Advisory In re Speaker, County Assembly of Embu [2018] eKLR.
Under Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Act, any matters which arise from an employment relationship and relating to removal and replacement in office and for connected purposes, the court clothed with jurisdiction to address is the Employment and Labour Relations Court as held in the case of Kenya Tea Growers Association & 2 others v National Social Security Fund Board of Trustees & 13 others; Law Society of Kenya ([2023] eKLR.
The employment relationship between the parties addressed, the court has jurisdiction.
It is also admitted that the petitioner filed ELRC Petition E008 of 2024. This petition is attached to the Replying Affidavit of Gadiel Maganga the Clerk to the County Assembly of Taita/Taveta and dated 16 July 2024. This attachment is word-for-word with this petition save for the change in the hearing from the High Court to the Employment and Labour Relations Court.
In the same Replying Affidavit, annexure “GM-5” is the order dismissing ELRC Petition E008 of 2024.
A similar suit already addressed with finality cannot be heard by the same court. This petition is res judicata. This court having expressed itself and orders in a similar petition ELRC Petition E008 of 2024, to sit and address a similar petition, would be to negate its orders without justification.
This court is effectively functus officio.
Indeed, as submitted by the respondents, a transfer of suits between the High Court to this court is without jurisdiction. In the filing of the petition before the High Court instead of this court, the High Court should address the preliminary objections filed by the respondents in this regard.
Transfer of suits between the same courts is allowed. However, this administrative procedure is not allowed between the different courts under Article 162 of the Constitution.
In the case of Kithita Ngeana v Mwaniki Kisume (2018) eKLR, the court held that:
…Section 18 (1) (b) of the Civil Procedure Act gives the court the general power to transfer all suits and this power may be exercised at any stage of the proceedings even suo moto by the court without an application by any party. The burden lies on the applicant to make out a strong case for the transfer. A mere balance of convenience in favour of proceedings in another court is not a sufficient ground though it is a relevant consideration. As a general rule, the court should not interfere unless the expense and difficulties of the trial would be so great as to lead to injustice. What the court has to consider is whether the applicant has made out a case to justify it in closing the doors of the court in which the suit is brought to the Plaintiff and leaving him to seek his remedy in another jurisdiction...
However, to file a suit before a court without jurisdiction is a different matter. Without jurisdiction, the power to transfer a suit does not exist.
The Supreme Court in The Supreme Court in Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others (2012)eKLR while addressing the issue of jurisdiction held that;
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings…. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” while discussing the issue of jurisdiction rendered itself as follows:“(68)A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings…. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
The jurisdiction of the High Court is granted by Article 165 of the Constitution while the jurisdiction of this court is delineated under Article 162(2) of the Constitution. The High Court has no supervisory role over courts addressed under Article 162 of the Constitution. Transfer of suit under Section 18 of the Civil Procedure Act does not transcend to this court.
This is the gist of the decision in Equity Bank Limited v Bruce Mutie Mutuku T/A Diani Tour & Travel (2016) eKLR where the Court of Appeal held that;
In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation. In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer. In Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another [2012] eKLR, it was held as follows. …
Early in the year 2012 in the formative years and during the operationalization of the court, the Court of Appeal in the case of Prof. Daniel Mugendi Vs Kenyatta University & Others, Civil Appeals No. 6 of 2012 addressed the question of whether the transfer of suit between courts of equal status was permissible and held that;
… in order to do justice, in the event where the High Court, the Industrial Court or the Environment & Land Court comes across a matter that ought to be litigated in any of the other courts, it should be prudent to have the matter transferred to that court for hearing and determination. These three courts with similar/equal status should in the spirit of harmonization, effect the necessary transfers among themselves until such time as the citizenry is well-acquainted with the appropriate forum for each kind of claim. However, parties should not file “mixed grill” causes in any court they fancy. This will only delay dispensation of justice.
The time such that the citizenry is well-acquainted with the appropriate forum of reach kind of claim in this case is apparent. The petitioner filed ELRC Petition E008 of 2024 on a good basis. He applied to withdraw the same on a good basis.
Being functus officio, the orders of Voi High Court as enumerated above, the file shall revert to the High Court for determination.
The Deputy Registrar ELRC, Mombasa to forthwith transmit this file to Voi High Court within the next seven (7) days to allow parties to move the High Court (Voi) as appropriate.
Delivered in open court at Mombasa on this 30 day of July 2024.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant:
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