1.The petitioner approached the Court on 25th January 2023 seeking declaratory orders, among other reliefs, on the grounds that his constitutional rights as enshrined in Articles 28, 31 and 40 of the Constitution had been violated by the respondent. He explained that he was employed by the respondent as a sales representative from October 2019 to October 2022 on a renewable performance based contract; and that in the course of his work the respondent’s technical team visited his area and took his photograph with some clients.
2.He further averred that he was surprised to learn later that the photographs had been shared by the respondent through social media such as youTube, WhatsApp and Linkedin as well as the respondent’s website. Thereafter, the respondent used the photographs to brand its commercial vehicles during the launch of the Twiga Foods Ltd, Isuzu and NCBA partnership. He contended that the photographs were thus used by the respondent for commercial purposes without his consent; and therefore amounted to a violation of his right to dignity and privacy under the Constitution of Kenya.
3.In response to the Petition, the respondent filed a Notice of Preliminary Objection dated 28th March 2023, on the grounds that:
4.The respondent’s Preliminary Objection was canvassed by way of written submissions, pursuant to the directions given herein on 22nd March 2023. Accordingly, Mr. Otieno for the respondent relied on his written submissions filed on 4th April 2023. He urged the Court to note that the petitioner has described himself as an employee of the respondent and annexed a copy of the employment contract to his Supporting Affidavit. Mr. Otieno therefore asserted that that the Court will have to delve into the employment records of the petitioner and the respondent; which evidence ought to be interrogated by the Employment and Labour Relations Court. He relied on Daniel Mugendi v Kenyatta University & 3 Others  eKLR and Wycliffe Amukowa & 2 Others v Machakos University  eKLR, among others authorities, for the proposition that the Employment and Labour Relations Court has the jurisdiction, when dealing with disputes involving employer and employee relations, to hear and determine breaches of fundamental rights.
5.Mr. Otieno further submitted that, looking at the employment contract dated 8th June 2021 that the petitioner intends to rely on, it is apparent that the dispute flows from the posturing that the petitioner is bound to comply with the arbitration clause even where constitutional questions arise. He cited Kenya Breweries Limited & Another v Bia Tosha Limited & 5 Others  eKLR. Accordingly, counsel prayed that the respondent’s Preliminary Objection be upheld.
6.On behalf of the petitioner, Mr. Nyongesa contended that, to the extent that the respondent’s Preliminary Objection, is premised on contested facts, it is untenable. For instance, he pointed out that the petitioner was not an employee of the respondent as at the time of filing the Petition and therefore that the contract dated 8th June 2021 had come to an end and cannot be the basis for the instant disputation. He therefore submitted that, on that score alone, the Court has jurisdiction to entertain the Petition. He proceeded to point out that the authorities relied on by counsel for the respondent are all distinguishable on account of the fact that the parties concerned were in an employer/employee relationship at the material time. In his view, this Petition is properly before Court and should be proceeded with to its logical conclusion.
7.Needless to say that it would be inconsequential for a Court of law to proceed to hear and determine a matter if it lacks the jurisdiction so to do. As was aptly expressed by the Court of Appeal in the Owners of Motor Vessel "Lillian s" vs. Caltex Oil (K) Ltd  KLR 1:
8.And, there is no gainsaying that the question of jurisdiction is one that must be taken in limine. In the MV Lillian S Case, the Court (per Nyarangi, JA) held that:
9.Consequently, I have given careful consideration to the grounds raised by the respondent in its Notice of Preliminary Objection filed herein on 28th March 2023, the written and the submissions filed by counsel in that regard, in the light of the averments set out in the Amended Petition filed on 27th February 2023. It is manifest therefrom that the 2nd ground of the respondent’s Preliminary Objection is untenable in so far as it is hinged on the employment contract dated 8th June 2023; and therefore is predicated on contested facts.
10.In Mukisa Biscuits Manufacturers Ltd v West End Distributors Ltd  E.A 696, it was held that:
11.Likewise, in Oraro vs. Mbaja  1 KLR 141 the principle was restated thus by Hon. Ojwang, J. (as he then was):
12.Arising from the foregoing conclusion, the only valid point for the Court to consider is that of jurisdiction; and in the work, the Major Law Lexicon, Volume 4, jurisdiction is aptly defined thus:
13.Accordingly, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others  eKLR, the Supreme Court held that:
14.Needless to comment on the mandate of the Employment and Labour Relations Court under Articles 162, 165(3)(a) and (5) of the Constitution as well as Section 12 of the Employment and Labour Relations Act, or to mention that the Employment and Labour Relations Court has the jurisdiction to handle constitutional disputes that fall within its mandate. Indeed, in Prof. Daniel N. Mugendi v Kenyatta University & 3 Others  eKLR, the Court of Appeal held:
15.There are however numerous situations in which overlaps arise as between the jurisdiction of the High Court on the one hand and the jurisdiction of the courts of equal status on the other. For instance, in this matter, the petitioner contends that is no longer an employee of the respondent; and that his dispute has nothing to do with his contract of employment with the respondent. His cause of action, as set out in Paragraphs 4-7 of the Amended Petition, is that the respondent used his images for commercial purposes without his consent. Hence, according to him, the dispute is not so much about an employer/employee relationship, but purely an issue of violation of his fundamental rights. In the circumstances, the question to pose is, what is the predominant issue in this dispute; and the answer, in this instance, is that the Petition as crafted, raises a constitutional issue as the predominant question for determination and is therefore properly before this Court.
16.Indeed in the two authorities relied on by counsel for the respondent, the parties were in an existing employer/employee relationship. In the Wycliffe Amukowa Case, the Court noted that the parties were in an employer/employee relationship when the suit was filed; and that the allegations of discrimination arose from the fact of that relationship; while in Daniel N. Mugendi v Kenyatta University & 3 Others, the petitioner was an employee when he was sent on compulsory leave; and therefore the dispute had everything to do with his employment. Indeed, the Court of Appeal noted in the latter case that:
17.It was therefore plain that the dispute was an employment dispute and ought to have been filed before the Industrial Court/ELRC in accordance with Article 162(2)(a) of the Constitution. What the petitioner herein complains of appear to have nothing to do with his contract of employment save for the fact that the photographs in issue were taken while he was in the course of his employment with the respondent. I consequently agree with counsel for the petitioner that the authorities relied on by the respondent in support of the Preliminary Objection are indeed distinguishable.
18.In the premises, I am persuaded by the position taken by Hon. Ngugi J. in Suzanne Achieng Butler & 7 Others v Redhill Heights Investment & Others, High Court Commercial Case No. 2 of 2016 that:
19.In the result, I find no merit in the respondent’s Preliminary Objection. The same is hereby dismissed with costs.It is so ordered.