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Ali v Cabinet Secretary Ministry of Education, Science and Technology & another (Constitutional Petition E296 of 2022) [2023] KEHC 18305 (KLR) (Constitutional and Human Rights) (30 May 2023) (Ruling)
Neutral citation:
[2023] KEHC 18305 (KLR)
Republic of Kenya
Constitutional Petition E296 of 2022
AC Mrima, J
May 30, 2023
Between
Chrostopher Galgalo Ali
Petitioner
and
Cabinet Secretary Ministry of Education, Science and Technology
1st Respondent
Attorney General
2nd Respondent
Ruling
Introduction:
1.This ruling is in respect of the Notice of Preliminary Objection dated 30th June, 2022 taken out by the Respondents. The objection impugns the jurisdiction of this Court.
2.The objection is vehemently opposed by the Petitioner.
3.The objection was heard by way of written submissions. All parties were represented by Counsel.
The Objection:
5.The objection is tailored as follows: -1.That the Honourable Court lacks jurisdiction to hear and determine the Petition dated 7th June 2022, herein since it is a dispute relating to employment and labour relations by virtue of the provisions of Article 165(5) of the Constitution which provides that ‘the High Court shall not have jurisdiction in respect of matters (b) falling within the jurisdiction of the Courts contemplated in Article 162(2).
6.The parties filed their respective submissions expounding on their rival submissions. Both parties referred to various submissions.
Analysis:
7.Given the length and nature of the submissions, I will not reproduce the same verbatim in this ruling. However, I will consider the parties’ positions, arguments and decisions referred to in the discussion herein.
8.From the consideration of the parties’ submissions and the decisions referred to, I hereby discern the following issues for determination: -i.Whether the Preliminary Objection is sustainable in law.ii.In the event that the answer to (i) above is in the affirmative, whether it is the High Court or the Employment and Labour Relations Court which has the jurisdiction over the instant proceedings;
9.I will now deal with the issues as under.
i. Whether the Preliminary Objection is sustainable in law:
10.The validity of a preliminary objection is considered on the basis that it conforms with the long-standing legal principle that it is raised on a platform of agreed set of facts, it raises pure points of law and is capable of wholly determining the matter.
11.To that end, the locus classicus decision in Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd (1969) E.A 696. At page 700, comes to the fore. In that case, the Court defined a preliminary objection and discussed its operation in the following eloquent manner: -
12.The Supreme Court weighed in on the issue in Aviation & Allied Workers Union Kenya -vs- Kenya Airways Ltd & 3 Others [2015] eKLR and stated thus: -
13.Ojwang J, as he then was, emphasized the finding in Mukisa Biscuit -vs- West End Distributors case (supra) in Civil Suit No. 85 of 1992, Oraro -vs- Mbaja [2005] 1 KLR 141 when he observed as follows: -
14.In John Musakali -vs- Speaker County of Bungoma & 4 others (2015) eKLR the validity of a preliminary objection was considered in the following manner: -
15.Finally, in Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, guidance was given on what Courts ought to consider in determining the validity of preliminary objections. It was observed: -
16.On whether the issue of jurisdiction is a pure point of law, the Supreme Court in Petition No. 7 of 2013 Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, [2014] eKLR, stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis.
17.I now return to the contents of the objection.
18.Without much ado, since the objection impugns the jurisdiction of this Court, then going by the Supreme Court in Mary Wambui Munene v. Peter Gichuki Kingara and Six Others case (supra), the objection is a jurisdictional challenge on a pure question of law and if sustained by this Court, it can terminate the entire matter. Therefore, the objection passes the proprietary test and is for further consideration.
ii. Whether it is the High Court or the Employment and Labour Relations Court which has the jurisdiction over the instant proceedings:
19.I must admit that the issue of the jurisdiction of the High Court and Courts of equal status, on some aspects, has been unsettled. However, the Court of Appeal and the Supreme Court have variously dealt with the matter and hopefully all such thorny areas shall soon stand resolved.
20.Speaking on the jurisdictional tug-of-war between the High Court and the Employment and Labour Relations Court, the Court of Appeal in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (2022) KECA 15 (KLR) in a decision rendered on 8th February, 2022 had the following to say on the aspect of jurisdiction: -36.Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:37.The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA. relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows:38.A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.39.The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:40.In Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, the Supreme Court reiterated its holding on a court’s jurisdiction. In the matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held 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 itself jurisdiction exceeding that which is conferred upon it by law.
21.The Court of Appeal went further and dealt with the issue of jurisdiction which had been raised impugning the Employment and Labour Relations Court.
22.The appellate Court laid the constitutional and legal foundation of the Employment and Labour Relations Court as follows: -41.Article 162 of the Constitution provides for the establishment of the Employment and Labour Relations Court and its jurisdiction thereof. It reads as follows:162.(1)The Superior Courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2).(2)Parliament shall establish courts with the status of the High Court to hear and determine dispute relating to-a.employment and labour relations; andb.the environment and the use and occupation of, and title to land.(3)Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).(4)….42.It is pursuant to the provisions of Article 162(2) of the Constitution that Parliament enacted the Employment and Labour Relations Court Act, 2011.43.The jurisdiction of the Employment and Labour Relations Court is provided for under section 12 of the Employment and Labour Relations Court Act, 2011. The provisions of section 12(1) of this Act provides as follows:“12.(1)The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extend jurisdiction to the Court relating to employment and labour relations including-a.disputes relating to or arising out of employment between and employer and an employee;b.disputes between an employer and a trade union;c.disputes between employers’ organization and a trade union’s organisation;d.disputes between trade unions;e.disputes between employer organisations;f.disputes between an employer’s organization and trade union;g.disputes between a trade union and a member thereof;h.disputes between and employer’s organization or a federation and a member thereof;i.disputes concerning the registration and election of trade union officials; andj.disputes relating to the registration and enforcement of collective agreements.” [Emphasis supplied]92.In interpreting Section 12 of the Employment and Labour Relations Court Act, 2011, my Lordship and Ladyships stated as follows: -44.Our interpretation of the provisions of section 12 of the Employment and Labour Relations Court Act is that the Employment and Labour Relations Court has jurisdiction to entertain any dispute or any contemplated dispute under section 12(1) but the dispute between the parties must be related to their employment and/or touching on labour relations. This is therefore to mean that the jurisdiction of the Employment and Labour Relations Court is not limited to the determination of disputes arising out of a contract of employment between an employee and an employer, the Court can also determine any constitutional violations of the rights of any party arising from an employee-employer relationship. However, for the court to entertain a petition premised on the breach of a party’s fundamental rights under the Constitution, the alleged constitutional breach must be ancillary and incidental to the matters contemplated under section 12 of the Act. Our view is fortified by the preamble to the Employment and Labour Relations Court Act, 2011 which provides that it is “An Act of Parliament to establish the Employment and Labour Relations Court to hear and determine disputes relating to employment and labour relations and for connected purposes.93.Applying Section 12 of the Employment and Labour Relations Court Act to the matters at hand, the Court of Appeal presented thus: -45.In the two consolidated petitions filed before the Employment and Labour Relations Court at Kericho, none of the petitioners demonstrated an existing employee-employer relationship with any of the respondents or with any public entity. Eric Cheruiyot, the 1st Petitioner in the consolidated petitions, described himself as a registered voter in Kericho County. At the hearing of this appeal, Mr. Simiyu, learned counsel for Eric Cheruiyot conceded that indeed his client did not have an employee-employer relationship with any of the respondents but insisted that his client had a right under Article 22(1) of the Constitution to institute the petition and that the same Article conferred jurisdiction upon the Employment and Labour Relations Court to hear and determine the petition.46.The 2nd, 3rd and 4th petitioners in the consolidated petitions (2nd to 4th respondents in the consolidated appeals) had separately tendered their one-month resignation notices from their respective positions which they held in the County Government of Embu. Their resignation notices were given in conformity with the provisions of section 43(5) of the Elections Act, 2011. Their respective resignation notices dated 5th January 2017 and 6th January were accepted by the Governor, County Government of Embu; the respondents were asked to hand over their respective dockets to their appointed successors; they were cleared, and their respective dues processed. The resignation notices were to take effect on 5th February 2017 and on 6th February 2017 respectively. On 7th February 2017 when the resignations were to take effect, the respondents sought to revoke their separate letters of resignation upon learning of the interim court order issued by the trial court on 18th January 2017 barring the IEBC from disqualifying public servants from participating in the 2017 general election for not vacating office six months prior to the general election. By this time the one-month notice period had already lapsed, meaning that their respective resignation notices had already crystallized.47.A notice of resignation is basically a notice of termination of employment, given by an employee to the employer. It is a unilateral act. The Black’s Law Dictionary (tenth Edition) defines resignation as follows:48.There was no evidence placed before the trial judge to show that the resignation by the 2nd to 4th respondents was involuntary. The 2nd to 4th respondents resigned voluntarily in compliance with a section of the law that was in force at the time. The 2nd to 4th respondents having resigned, their resignations having been formally accepted, their dues paid, and their respective positions filled meant that their resignation notices had already crystallized. There was nothing to go back to. The employee-employer relationship between the 2nd to 4th respondents and the County Government of Embu had already come to an end. The Employment and Labour Relations Court ought to have arrived at this finding and immediately downed its tools.49.In the absence of an employee-employer relationship, it is our considered view that the Court that had jurisdiction to entertain and determine the issues raised in the consolidated petitions was in fact the High Court. The establishment of the High Court is found at Article 165(1) of the Constitution. Under Article 165(3), the High Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been violated, infringed or threatened. Under Article 165 (d)(i), the High Court has jurisdiction to determine whether any law is inconsistent with or in contravention of the Constitution.50.The issues raised in the consolidated petitions, especially the issue relating to the constitutionality of section 43(5) of the Elections Act, 2011 are the kind of issues contemplated under Article 165 (3)(d) of the Constitution determination of which would be within the exclusive constitutional mandate of the High Court. This is jurisdiction flowing directly from the Constitution, which the Supreme Court alluded to in the matter of Interim Independent Electoral Commission (supra) and Samuel Kamau Macharia & another (supra).51.The Constitution appreciates that there are matters within the exclusive jurisdiction of the High Court on the one hand and those reserved and/or falling within the jurisdiction of the courts contemplated in Article 162(2) on the other hand, notwithstanding the fact that the latter courts enjoy the same status as the High Court. This Court in Karisa Chengo & 2 others v Republic [2015] eKLR held thus:52.This Court in the Karisa Chengo case (supra) held that status of a court is not synonymous to jurisdiction. In this context therefore, although the Employment and Labour Relations Court exercises the same power as the High Court in performance of its judicial functions, it has specialized jurisdiction and is not the High Court. It is important to point out that the finding of this Court in the Karisa Chengo case was upheld by the Supreme Court.53.Therefore, for want of an employee-employer relationship, we find and hold that the Employment and Labour Relations Court arrogated itself jurisdiction that exceeded that conferred upon it by law, which renders its decision a nullity ab initio.
23.From the above decision, which is binding on this Court, the Court of Appeal settled the issue of the jurisdiction of the Employment and Labour Relations Court. The Court of Appeal was very emphatic that the Employment and Labour Relations Court can only exercise jurisdiction in instances where there is an employer-employee relationship.
24.In the said cases, the Court of Appeal even declined to accord the Employment and Labour Relations Court jurisdiction in an instance where the Petitioners were challenging the validity of their letters of resignation on the grounds that the letters had been accepted by the employer and acted upon thereby extinguishing the employer-employee relationship. According to the Court of Appeal, any challenge thereof could only be taken up before the High Court.
25.Applying the foregoing to this matter, it is plain that there exists no employer-employee relationship between the Petitioner and any of the Respondents. As such, and until such an employer-employee relationship exists, the jurisdiction of the Employment and Labour Relations Court cannot be invoked.
26.As the matters in the instant Petition are those preceding any employer-employee relationship, there is no way the Employment and Labour Relations Court can claim any legitimacy over the subject proceedings.
27.In sum, the objection has no legal leg to stand and is for rejection.
Disposition:
28.Having found that the objection cannot stand on the way of the Petition, the following final orders hereby issue: -a.The Notice of Preliminary Objection dated 30th June, 2022 be and is hereby dismissed.b.Costs to abide the outcome of the Petition.c.Parties shall take directions on the way forward.Orders accordingly.
DELIVERED, DATED AND SIGNED AT KITALE THIS 30TH DAY OF MAY, 2023.A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:N/A for partiesRegina/Chemutai – Court Assistants.
