1.This ruling is the outcome of two notices of preliminary objection. The first is dated March 23, 2023in which the 2nd respondent argued that the petition dated 7/3/2023 and amended notice of motion dated 13/3/2023 are bad in law as this court lacks jurisdiction to entertain the same.
2.The 2nd respondent put forward the following grounds:-
3.The secondnotice of preliminary objection is dated April 24, 2023in which the 1st respondent challenged the amended motion dated March 27, 2023 and the amended petition dated March 13, 2023 and relied on the following grounds:-
4.When the aforesaid notices came up for hearing, parties opted to file written submissions. I have considered the rival written submissions plus the grounds stated on the two notices.
5.The main ground raised in the notices of preliminary objection is to the effect that theissues in dispute are matters which belong to the Employment and Labour Relations Court under article 162(2) of the Constitution of Kenya, 2010 and under section 12 (1) of the Employment and Labour Relations Act No.20 of 2011.
6.The 1st and 2nd Respondents averred that this court lacks Jurisdiction to entertain the dispute under article 165 (5) (b) of the Constitution of Kenya, 2010.
7.It is the submission of the 1st respondent that the suit is based on breaches arising out of employment relationships, therefore the High court lacks Jurisdiction to hear and determine the instant Petition together with the applications emanating therefrom.
8.The 1st respondent urged this court to strike out the petition and any subsequent pleadings emanating therefrom.
9.The 2nd respondent also submitted that the High Court is devoid of Jurisdiction to hear and determine the dispute between the parties in the instant petition.
10.The 2nd respondent pointed out that the matters raised in the petition and the subsequent application relate to an employment relationship between the Respondent, the Petitioners.
11.This court was urged to dismiss the petition on the basis that the court is bereft of Jurisdiction. The 2nd respondent further stated that the Employment and Labour Relations court can hear and determine any claims under the Constitution in respect of alleged violation of fundamental rights and freedoms under chapter 4 of the Constitution which arise from an Employment Relationship.
12.In Response to the 1st and 2nd respondent’s submissions over the notices as the preliminary objection, the petitioners are of the submission that there is no express provisions giving Jurisdiction to Employment and Labour Relations Court to entertain hear and determine the questions whether a right or fundamental freedom in the Bill of rights has been denied, infringed or threatened.
13.The petitioners further argued that the High Court Jurisdiction to entertain the instant petition since the petitions are basically inviting this court to determine the questions whether a right, fundamental freedom in the Bill of rights has been denied, violated, infringed or threatened.
14.It is apparent that the petitioners in the further amended petitiondated April 19, 2023in paragraph 1 aver as follows:-
15.In paragraph 79 and 92 of the further amended petition which the petitioners listed the alleged violations of rights and fundamental freedoms committed by the 1st respondent against them in the course of the Petitioners employment.
16.There is no dispute that Under article 162 (2) (b) of the constitution of Kenya, 2010, the employment and Labour Relations court is given exclusive Jurisdiction over disputes relating to employment and Labour Relations.
17.I am of the view that once the Constitution and the Act, has given exclusive Jurisdiction over employment disputes to the Employment and Labour Relations court, that Jurisdiction encompasses disputes pertaining to violation of rights and fundamental freedoms.
18.The High Court does not therefore have jurisdiction to entertain the present suit by virtue of the Express Provisions ofarticle 165 (5) (b) of the Constitution of Kenya, 2010.
19.I am persuaded by the argument put forward by the 2nd respondent that the Jurisdiction of the Employment and Labour Relations to hear and determine Constitutional Matters arising out of employment relationships is settled by judicial pronouncements.
21.In the end, I find the two notices of preliminary objections to be meritorious. i uphold the preliminary objections and proceed to dismiss the amended petition dated 13/3/2023 and the further amended petition of even date together with all the applications emanating from those petitions.
22.In the circumstances of this matter, a fair order on costs is to order which I hereby do that each party meets its own costs.