1.The petitioner herein filed this petition as well as an application dated 7th February 2023 seeking among others interim orders against the respondents jointly and severally. The court certified the same urgent and ordered the respondents to be served for inter partes hearing on 14th February 2023.
2.When the matter came up on the said date there was no representation on the part of the respondents and the court granted interim orders as prayed by the petitioner. What followed thereafter were flurry of applications by the respondents as well as the petitioner.
3.The 1st respondent filed an application dated 20th February 2023 seeking to have the orders set aside and in the meantime stay of the same. Contemporaneously, it filed a preliminary objection questioning the jurisdiction of this court. It was its view that the issue at hand was best suited to be handled by the Labour Relations Court (hereinafter referred to as Labour Court).
4.The proposed interested party on 14th February 2023 filed an application seeking to be enjoined as a party to this petition.
5.The petitioner on 20th February 2023 filed another application in which it sought to have the orders of 14th February 2023 enforced by the police seeing that there was no compliance by the respondents.
6.On 8th March 2023 the petitioner filed another application seeking to have the intended interested party be cited for contempt of court.
7.It is worthy to note that all the parties have responded to the applications either by way of replying affidavits and or grounds of opposition.
8.The court has perused the rival affidavits and in view of the preliminary objection challenging the jurisdiction of the court the same as a matter of priority ought to be determined. It must be noted that the court had earlier directed the same to be heard simultaneously with the applications. However, and now that all the parties have filed their responses and their grounds of opposition as well as other pleadings, it is the wisdom of this court that the said preliminary objection be determined first.
9.This position is buttressed by the now famous authority of Owners of the Motor Vessel “Lillian’s” v Caltex oil (Kenya) Ltd (1989) eKLR, where the eminent learned judges stated inter alia;
10.The said preliminary objection dated 22nd February 2023 states that “this court lacks jurisdiction to deal with the matter in issue in this case pursuant to Article 162 of the constitution and section 4 as read with Section 12 of the Employment and Labour Relations Court Act (No.20 of 2021.)”
11.The said objection was supported by the replying affidavit of Alice Muthoni Wahome the second respondent’s Cabinet Secretary who deponed that the matter felt squarely on the jurisdiction of the Labour court. That the issue between the petitioner had to do with his employment contract and subsequent termination where he even collected his terminal dues.
12.The intended interested party as well supported the objection by filing a similar notice dated 8th March 2023. The only addition is that the matter was res judicata having been dealt with in Nakuru ELRC Petition No. E014 OF 2021 between Joel Akinga Ondieki v. Central Rift Valley Water Works Agency & 5 Others.
13.The court having as stated above been seized of all the pleadings herein is of the consideration that the matter ought to be determined by Labour court. This is for the following reasons.
14.First of all, looking at the letter of appointment dated 11th April 2018, from the 1st respondent to the petitioner, the same clearly spells out the terms of the contract. The same is marked as annexure “HKW A “in the supporting affidavit.
15.The same goes with the request for the renewal of contract dated 30th October 2020, annexure “HKW B” and all the subsequent annexures.
16.Article 162 and 165 of the constitution provides as hereunder in respect to the constituting of the two courts. Thus Article 162 states;
17.It is apparent that any matter relating to the question of employment is clearly spelt out that it has to be handled by the Labour court.
18.Looking at the prayers in the main petition, the petitioner alleges breaches of his constitutional rights by the respondents jointly and severally.
19.The court in USIU V.AG (2012) eKLR stated as follows;
20.Evidently the Labour court for all intent and purposes has the necessary jurisdiction just as this court to determine any breach of anybody’s constitutional rights. In essence therefore the complains raised by the petitioner herein can as well be dealt with by the Labour court.
21.The issue of res judicata raised by the intended interested party for now cannot be dealt with for the simple reason that the said party was yet to be admitted into this petition and more importantly the Labour court which made the said decision will still have the opportunity to look into it.
22.What then is the way forward? I think, and rightfully so, that this matter ought to be canvased by the Labour court. Nothing is lost to all the parties. The constitutional rights of the petitioner which he alleged were breached will be dealt with by the said court which is competent enough. The applications on record which this court was yet to delve into shall be litigated by the said court.
23.In the premises, this petition together with the pending applications are transferred to the Employment and Labour Relations Court at Nakuru for hearing and determination and or further directions.
24.The interim orders earlier issued are hereby discharged and or set aside.
25.Costs shall await the outcome of the petition as shall be determined by the said court.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 28TH DAY OF MARCH 2023.H. K. CHEMTEI.JUDGE