1.The Petitioner filed the petition herein seeking various declatory and conservatory orders that was precipitated by the 1st Respondent’s decision to advertise certain positions in the County government for employment. Contemporaneous with filing the petition, he filed a notice of motion seeking interim reliefs pending the hearing and determination of the petition. This court granted temporary conservatory orders pending the hearing inter parties of the application.
2.Upon being served with the petition and the application, the Respondents raised a preliminary objection to the entire petition essentially on two grounds that this court did not have jurisdiction to hear the petition because the subject matter was Labour and therefore it ought to have been filed at the Employment and Labour Relations Court (ELRC) and not before this court. Conversely the Respondents asserted that even if this court were to find that it has jurisdiction, the petitioner has not exhausted all the remedies available to him under the Law specified the County Government Act, 2012 and the Public Service Commission Act, 2017. The Preliminary objection raised by the Respondents is therefore two-pronged. The Petitioner does not agree with the Respondents that this court lacks jurisdiction or that he has failed to comply with any condition precedent before filing the present petition before this court.
3.This court heard oral rival submissions made by Mr. Wanyama for the Respondents and by Mr. Simiyu for the Petitioner. Mr. Wanyama submitted that in so far as the subject matter of the suit is the recruitment of County Government staff, that is an issue that falls squarely within the jurisdiction of ELRC . He cited Article 234(2) (1) of the Constitution, Section 77 of the County Government Act and Section 85 of the Public Service Commission Act for the further argument that those seeking to challenge the recruitment process in a County government should first exhaust the procedure provided for settling disputes before purporting to file suit in court.
4.Mr. Simiyu for the Petitioner opposed the Preliminary objection. He submitted that the thrust of the Petition is the Petitioner’s assertion that the Respondents had advertised and purported to commence recruitment of County government staff in breach of Article 201 and 220(2) (1) (g) of the Constitution and Section 104 (1) (b) of the Public Finance Management Act. Learned Counsel submitted that the Respondents commenced recruitment process without a budgetary provision for those they are seeking to employ. The Petitioner argued that the issue before the court is not a labour dispute nor is it specifically challenging the recruitment of a particular individual but rather seeking to question the propriety of the recruitment in view of the fact that no budget has been prepared or approved for such recruitment.
5.The Petitioner argues that such dispute is within the jurisdiction of this court because the petition seeks the interpretation of the Constitution and the Public Finance Management Act. He therefore urged the court to dismiss the preliminary objection.
6.This court has carefully considered the rival submissions made by the parties herein on the issues raised in the preliminary objection. Firstly, the court agrees with the holding by the Supreme Court in Samuel Kamau Macharia & Anor. – Vs- Kenya Commercial Bank & 2 Others  eKLR that:
7.The Court of Appeal in Phoenix EA Assurance Company Ltd - Vs- P.M. Thiga t/a Newspaper Service  eKLR held thus on jurisdiction:
8.The Respondents are therefore within their right to challenge the jurisdiction of this court if they form the view that it lacks jurisdiction to entertain the petition before it. As stated earlier in this ruling, the Respondents preliminary objection is two- pronged; that this court lacks jurisdiction to hear the petition because it is essentially a labour dispute which ought to have been filed before the Employment and Labour Relations Court. The jurisdiction of the Employment and Labour Relations Court is provided under Section 12 of the Employment and Labour Relations Court Act. The Court of Appeal in Public Service Commission & 4 others –vs- Cheruiyot and 20 others  KECA 15 (KLR) held that;
9.In Henry Kigen & 6 others – vs- Baringo County Governor & 2 others  Eklr, Muriithi J held thus:
10.From foregoing decisions, it is clear that the jurisdiction of the ELRC can only be invoked where there exists and employee-employer relationship which is not the case in this petition. Indeed, none of those who have responded to the advertisement for the positions advertised are parties to this petition . They have not yet been employed and therefore they are not yet employees of the 1st Respondent. The assertion by the Respondents that the issue in dispute is an employment matter therefore has no basis. The preliminary objection challenging the jurisdiction of this court is therefore misplaced and is hereby dismissed in that regard.
11.As to whether the issues sought to be canvassed before this court in the petition filed by the Petitioner are premature, this court cannot, at this preliminary stage, make a decision regarding the same. The facts sought to be relied on are contested. They are not agreed. As was held by the court in Mukisa Biscuit Manufacturing Co. Ltd – Vs- West End Distributors Ltd  EA 969, where facts cannot be ascertained or where facts are disputed, a preliminary objection cannot be raised. This is because the court cannot ascertain the facts, at a preliminary stage, without hearing such parties. In the present case, it is clear to the court that the issues relating to whether the correct forum was invoked by the Petitioner can only be determined after the court as ascertained the facts upon which the Respondent’s preliminary objection is premised.
12.From the foregoing, it is evident that the preliminary objection lacks merit. It is hereby dismissed with costs to the Petitioner.