Odongo v Clerk, Nakuru County Assembly & 5 others (Application E053 of 2023) [2024] KESC 29 (KLR) (Civ) (28 June 2024) (Ruling)

Key Facts

Issues

• Whether it is a grave miscarriage of justice and violation of right to access to justice in public litigation to order the applicant to pay costs of the suit particularly where the suit has been shown to raise serious issues of law for determination.
• Whether the Employment and Labour Relations Court (ELRC) lacks jurisdiction to entertain disputes relating to recruitment, selection, nomination and appointment of employees; and whether such acts are of general public importance requiring further input by this Court.
• Whether the learned Judges erred in law and fact and fell into grave error in their application of Sections 77, 85 and 87 of the County Governments Act particularly in so far as it relates to nomination of County Chief Officers by the Governor under Section 45 of the County Governments Act.
• Whether in light of the provision of Articles 23 and 258 of the Constitution of Kenya as well as Rule 4(2) as read together with Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedural Rules of Kenya the jurisdiction of the Employment and Labour Relations Court is only limited to parties before it.
• Whether the list of disputes set out under Section 12 of the Employment and Labour Relations Act No. 20 of 2011 (ELRC Act) can be said to be limited and restrictive or whether the Act contemplates other employment questions not captured thereunder.

Holdings

• The Court found the dispute moot as the recruitment process for county officers had been completed, and the officers were already enrolled in the payroll. This rendered the appeal unnecessary for determining general public importance.
• The Supreme Court upheld the Court of Appeal's decision that the Employment and Labour Relations Court (ELRC) lacks jurisdiction over disputes related to recruitment, selection, nomination, and appointment of employees unless they arise from an employee-employer relationship. The Court emphasized that its prior rulings, including in Karisa Chengo and Albert Chaurembo Mumba, have clearly demarcated the ELRC's jurisdiction under Article 162 and Section 12 of the ELRC Act.
• The Court rejected the applicant's argument that Section 12 of the ELRC Act is not restrictive, noting that its interpretation aligns with settled precedents. The applicant failed to demonstrate how the Court of Appeal's interpretation was contradictory or of public importance.
• The Court dismissed the applicant's claim that ordering payment of costs was a miscarriage of justice, citing its principle in Okiya Omtatah Okoiti that costs follow the event in public interest litigation, unless exceptional circumstances apply.
• The Court affirmed the Court of Appeal's literal interpretation of Sections 77, 85, and 87 of the County Governments Act regarding Governor's nomination of Chief Officers. It held factual disputes cannot alone justify certification for public interest litigation.

Remedies

• The Originating Motion dated 28th December 2023 is hereby dismissed for the reasons stated in the Ruling.
• Each party shall bear its costs of this application, as determined by the Court in accordance with its discretion and established principles on costs in public interest litigation.

Legal Principles

• The Supreme Court applied its established costs principles in public interest litigation, ruling that each party would bear their own costs due to the nature of the issues and the absence of a clear public interest justification for awarding costs to the applicant.
• The Supreme Court conducted a judicial review of the Court of Appeal's interpretation of Section 12 of the ELRC Act and Article 162 of the Constitution. It concluded that the Court of Appeal correctly determined the ELRC's jurisdictional limits and that the applicant's claims lacked sufficient grounds for certification as a matter of general public importance.
• The Court of Appeal applied a literal interpretation to Sections 77, 85, and 87 of the County Governments Act, particularly regarding the nomination of County Chief Officers by the Governor under Section 45. The Supreme Court affirmed this approach, emphasizing that factual determinations cannot alone justify certification for an appeal.

Precedent Name

• Kenya Tea Growers Association v National Social Security Fund Board of Trustees
• Thika Coffee Mills v Rwama Farmers Cooperative Society Limited
• Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
• Republic v Karisa Chengo & 2 others
• National Social Security Fund Board of Trustees v Kenya Tea Growers Association
• Okiya Omtatah Okoiti v Attorney General
• Marley Ezekiel Ayiego (Interested Party)
• Hermanus Phillipus Steyn v Giovanni- Ruscone
• Malcom Bell v Daniel Toroitich Arap Moi & Another
• Attorney General & 2 others v Okiya Omtata Okoiti & 14 others
• Goldenlime International Limited v Blue Sea Shopping Mall Limited
• Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company

Cited Statute

• Employment and Labour Relations Court Act, 2011
• County Governments Act
• Parliamentary Service Commission Act
• Supreme Court Rules, 2020
• Supreme Court Act, 2011
• Constitution of Kenya

Judge Name

• P. M. Wanjiru
• I. Lenaola
• M. K. Ibrahim
• M. K. Koome
• Njoki Ndungu

Passage Text

• The applicant has not advanced any cases that are distinguishable from these decisions of the Court of Appeal.
• The Court of Appeal in dismissing the application for certification found that the applicant had not set out why its decision on settled principles required consideration by the Supreme Court and how it impacts third parties or other cases.
• The common theme in all the cases is that a dispute falling within the purview of the ELRC should emanate from an employee-employer relationship and/or affect its status.