Ibwaga & 84 others v Attorney General (Employment and Labour Relations Petition E071 of 2023) [2023] KEELRC 2802 (KLR) (3 November 2023) (Ruling)
Neutral citation:
[2023] KEELRC 2802 (KLR)
Republic of Kenya
Employment and Labour Relations Petition E071 of 2023
AN Mwaure, J
November 3, 2023
Between
Eunice Ibwaga & 84 others
Petitioner
and
Attorney General
Respondent
Ruling
1.The Respondent raised a preliminary objection dated 23rd June 2023 in opposition of the Petitioner’s petition herein dated 12th April 2023 on grounds that:1.this Honourable Court lacks jurisdiction to entertain these proceedings. It is only the High Court by dint of articles 165(3)(d)(i) of the Constitution that has jurisdiction to determine the question whether any law is consistent with or in contravention of this Constitution.2.this Honourable Court lacks jurisdiction to entertain these proceedings by dint of the provisions of section 12 of the Employment and Labour Relations Court Act.3.the Petitioners have not rebutted the presumption of constitutionality of section 90 of the Employment Act or at all to warrant the orders sought.4.the Petitioners have not demonstrated with precision how its fundamental rights and freedom under the Constitution have been violated or are threatened and has not produced any evidence to prove the alleged violations contrary to the principles espoused in the locus classicus decision in Mumo Matemu v Trusted Society of Human Rights Alliance (2013) eKLR and Annarita Karimi Njeru (1979) KLR 154.5.the suit is an abuse of the court process.6.the suit is incompetent and ought to be struck out with costs.
Petitioners’ Submissions
2.The Petitioners submitted that the main issue for determination is whether section 90 violates constitutional rights of persons seeking redress with regards to contracts of employment upon expiry of the 3-year limitation period prescribed under section 90 of the Employment Act. This is a constitutional issue that arises from employer-employee dispute.
3.The Petitioners submitted that they were in an employer employee relationship, their contracts were terminated unlawfully and they intend to seek redress in this court but cannot do so unless the court addresses the impediment created by section 90 of the Employment Act.
4.The Petitioners submitted that the petition demonstrated the complaint, specific provision of the constitution infringed and the manner it was infringed and have espoused on particulars of unconstitutionality of section 90 of the Employment Act in accordance with the criteria set in Anarita Karimi Njeru case.
Respondent’s Submissions
5.The Respondent submitted that there is no employer-employee dispute in the present suit calling for this court’s determination.
6.It further submitted that this court lacks jurisdiction to entertain the suit as only the high court by dint of article 165 (3)(d)(i) of the Constitution that has jurisdiction to determine whether any law is inconsistent with or in contravention of this contravention.
7.The Respondent submitted that during inception of ELRC files were transferable from the high court to ELRC since it was during the transition period. This court lacks jurisdiction to entertain the present proceedings and equally lacks jurisdiction to transfer the suit to the high court.
8.The Respondent submitted that this court should strive to interpret the provisions of section 90 of the Employment Act to promote the intent of the legislature. Section 90 of the Act places all nature of employees in the same room and it fails to envision that the inability to access to justice can be both as a result and cause of disadvantage and poverty and the Petitioner’s delay in filing their suit within the requisite time was a result of their impecuniosity hence the inability to afford services of a legal representative
9.The Respondent submitted that the Petitioners are misinterpreting section 90 of the Employment Act. The impugned section limits filing of suits to within 3 years next after the cause of action and not denying Kenyans the right of access to justice.
10.The Respondent further submitted that the petition does not meet the threshold espoused in Mumo Matemu v Trusted Society of Human Rights and the Anarita Karimi cases which set the threshold to be met in a petition alleging constitutional violations and opined that it should define the dispute to be decided by the court and plead with particularity and reasonable precision on the provisions breached and the nature or manner of the breach alleged or complained of. The present petition and the submissions are merely reproduction of the constitutional provisions allegedly violated according to them without any evidence to prove the alleged violations. The allegations of breach lack basis and is contrary to regulation 10 of the Employment and Labour Relations Court (Procedure) Rules 2016 and regulation 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules 2013. The Constitutional provisions cited by the Petitioners without iota of evidence to not warrant the orders sought.
Analysis and Determination
11.The jurisdiction of the High Court and this court have been clearly set out in the constitution.
12.Article 165 (3) of the Constitution of Kenya provides for the jurisdiction of the High Court as follows:
13.The Employment and Labour Relations Court was established under article 162 (2)(a) as a court with the status of the High Court to hear and determine disputes relating to employment and labour relations and its jurisdiction is spelled out under section 12(1) and (2) of the Employment and Labour Relations Act, No. 20 of 2011 as follows: -
14.Section 12(3) of the Employment and Labour Relations Act, No. 20 of 2011 provides for the powers of the court as follows: -
15.In the Court of Appeal case, National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR):
16.Having identified the germane issue before it as early as at paragraph 1 of the judgment, the ELRC fell into a grave error when it failed to appreciate that the issue before it fell within the jurisdiction of the High Court as prescribed by article 165(3)(d)(i) of the Constitution. Further, the bench fell into error when it failed to appreciate that authorities were replete on the following positions;-a.the constitutional issues had to arise from an employer-employee dispute for the ELRC to assume jurisdiction; andb.employment cases were not the appropriate mechanism for the ventilation of grievances of litigant’s constitutional issues except where the issues arose in an employer-employment dispute.c.The Constitution had to be interpreted flexibly to meet social, political and historic realities.
17.The ELRC failed to appreciate that jurisdiction was determined on the basis of pleadings before consideration of the substantive merits of the case. The petitions challenged the constitutional validity of the legislative process leading to enactment of a legislation and or some of its provisions. The instant matter was not an employer-employee dispute. The ELRC failed to appreciate that laws affected many things in a variety of ways, large and small, but those side winds did not determine what matter a law was in relation to. That was determined by analyzing the central focus of the law, what it was really all about. In order to analyze what matter a challenged law was “in relation to” the court had to separate it from matters incidentally affected by the law. The bench failed to appreciate that crucial separation.
18.From a reading of articles of 162(1), (2)(a) and (b) and (3) and 165 (3) (d)(i) of the Constitution and section 12 (1) (a)-(f) of the ELRC Act and the germane issue before the ELRC, the ELRC wrongfully assumed jurisdiction.”
19.In London Distillers Kenya Limited & another v Kenya Union of Commercial Food Allied Workers Union [2021] eKLR the court stated:
20.In Daniel Mangi Gichuru v Jubilee Insurance Co. Ltd CA No 138 of 2016 the Court expressed itself as follows:The Environment and Land court and the Employment and Labour relations court do have jurisdiction to redress violation of constitutional rights in matters falling under their jurisdiction.The prayers sought in this applicant is to do with the constitutionality of section 90 of the Employment Act which is not an employee/employer matter but is the ambit of the legislation.
21.Furthermore, the petitioner does to demonstrate how their rights and/or access to justice are being infringed upon.
22.The claimants have right of access to justice under article 90 within 3 years of the occurrence of the infringement of their rights.
23.Flowing from the above the court is persuaded it lacks jurisdiction to entertain these proceedings by dint of articles 165(3)(d)(1) of the Constitution and section 12 of Employment and Labour Relations Court Act.
24.The said petition dated 12th April 2023 is therefore not merited and is dismissed accordingly.
25.Each party will bear their respective costs.
DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 3RD DAY OF NOVEMBER, 2023.ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAURE**JUDGE*