Mwangi v Attorney General & others; Judicial Service Commission & others (Interested Party) (Constitutional Petition E048 of 2022) [2023] KEHC 451 (KLR) (Constitutional and Human Rights) (31 January 2023) (Ruling)

Key Facts

Issues

• The court examined the merits of the application for review. It concluded that the application was merited as it was filed promptly (within three days of the transfer order) and based on valid grounds, including the ELRC Court's lack of jurisdiction. The doctrine of functus officio was found inapplicable since the High Court had not finalized the matter beyond the transfer order.
• The court addressed the jurisdiction of the Employment and Labour Relations Court (ELRC) in this matter. It found that the ELRC Court only assumes jurisdiction when an employer-employee relationship exists. Since the petitioner has no such relationship with the other parties, the ELRC Court lacked jurisdiction. This led to the review and setting aside of the transfer order.

Holdings

• The Order transferring this matter to the ELRC Court issued on February 7, 2022 is hereby reviewed and set-aside.
• Costs of the application shall be in cause.
• The matter is hereby recalled to the High Court and shall be placed before the Presiding Judge of the Division for further dealing.

Remedies

• The case was recalled to the High Court and will be placed before the Presiding Judge of the Division for further handling.
• The costs associated with the application are to be determined as part of the proceedings.
• The Order transferring the matter to the Employment and Labour Relations Court (ELRC) dated February 7, 2022, was reviewed and set aside due to the ELRC's lack of jurisdiction over the case.

Legal Principles

• The application for review was granted based on two grounds: (1) the ELRC Court lacked jurisdiction over the Petition due to the absence of an employer-employee relationship, and (2) the application was filed timeously within three days of the impugned order.
• The Employment and Labour Relations Court (ELRC) only assumes jurisdiction when an employer-employee relationship exists, as established in Public Service Commission & 2 Others vs. Eric Cheruiyot (2022 KECA 15). The court found the ELRC had exceeded its jurisdiction in this case.
• The doctrine of functus officio does not apply here because the High Court had not rendered a final decision on the merits of the case—only a transfer order. This principle prevents reopening matters after final decisions but was inapplicable in these circumstances.

Precedent Name

• Telkom Kenya Limited vs. John Ochanda
• Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with County Government of Embu & Another vs. Eric Cheruiyot & 15 Others
• Raila Odinga & 2 Others vs. Independent Electoral and Boundaries Commission & 3 others

Cited Statute

Judge Name

Passage Text

• The application is, therefore, merited.
• The Order transferring this matter to the ELRC Court issued on February 7, 2022 is hereby reviewed and set-aside.
• From the record, it has now emerged that there exists no employer-employee relationship between the Petitioner herein and any of the other parties.