“24. So important is the issue of jurisdiction that it can be raised at any time in the proceedings – including on appeal even if it was not raised earlier…………. “Moreover, it being a point of law, the issue of jurisdiction can also be raised at any stage; in the trial court, first appeal, or even on second or third appeal.”- Governor, County Government of Kakamega & 4 others v Omweno & 12 others (Civil Appeal E176, E177 & E179 of 2024 (Consolidated)) [2025] KECA 190 (KLR) (7 February 2025) (Judgment)
Introduction
In a recent decision by the Court of Appeal in the matter of Governor, County Government of Kakamega & 4 others v Omweno & 12 others (Civil Appeal E176, E177 & E179 of 2024 (Consolidated)) [2025] KECA 190 (KLR) (7 February 2025) ( the Judgment), the Court has clarified the position in which the specialized Courts of the Employment and Labour relations Court( ELRC) and the Environmental and Land Court (ELC) ought to exercise their specialized jurisdiction in contradistinction with the jurisdiction of the High Court.
The Court of Appeal in asserting the foregoing held as follows, “As this Court has variously said, the ELRC and ELC certainly have jurisdiction, in appropriate cases, to interpret and apply the Constitution in matters that arise in the context of disputes on Employment and Labour Relations or Environment and Land matters. They, however, have no original or unlimited jurisdiction to interpret and apply the Constitution.”
Background
The consolidated Appeal arose from the decision of the ELRC at Kakamega where it was held that, “1. It is hereby declared that the removal process of the Petitioners from office, by the Kakamega County Assembly, the 2nd Respondent, was in violation of Articles 35, 47, 50 and 236 of the Constitution………5. The Petitioners are to resume office with immediate effect and serve for the remainder of their term unless lawfully removed from office.” The Petitioners in the Appeal were the chairperson and three members of the County Service Board of Kakamega who were removed from office by the County Assembly of Kakamega. Dismayed by the decision of the County Assembly, the Petitioners approached the ELRC via a Petition for relief where they prevailed.
At the ELRC, the Appellants raised a preliminary objection to the jurisdiction of the Court which was dismissed. It is trite that jurisdiction is everything and without it the Court ought to down its tools and thus, in canvassing the consolidated Appeal, the Appellate Court considered the issue of jurisdiction of the ELRC which was re-submitted on and raised a fresh at the Court of Appeal.
Legal Analysis
In this case, the chairperson and the three members of the County Service Board did not involve any employer-employee relationship and that in the circumstances, any alleged violation of their Constitutional rights was a matter for the High Court. The Court of Appeal made reliance to Article 235 of the Constitution which enumerated the establishment and abolishment of the offices in the County Public Service. To bolster the foregoing, the Appellate Court laid bare the provisions of the County Government Acts which deal with the County Public Service and their operationalization of Article 235 of the Constitution.
The Appellate Court in analysis of the legal provisions observed that the appointment and removal of members of County Service Boards is a textually constitutionalized and heavily regulated space. A key provision in the County Government Act was Section 58 which provided that members of the County Service Board may only be removed from office “….….a. On grounds set out for the removal of members of a constitutional commission under Article 251(1) of the Constitution;” The upshot of the foregoing and the legal analysis of the Appellate Court was, “……..By making reference to Article 251 of the Constitution, the Statute is making clear that a constitutional process is intended. Such a constitutional process is not subject to the rules of employment law and disciplinary procedures but to rules attending to constitutional processes. Any person aggrieved by such a process – whether a participant or a public spirited individual – can seek redress – not at the Employment and Labour Relations Court but at the High Court.”
Conclusion
The ELRC & the ELC are specialized courts with specialized jurisdiction which is limited only to Employment and Labour Relations or Environment and Land matters. That their jurisdiction is not to be misplaced with their equal status with the High Court and be used as a justification for them to take on purely constitutional questions presented in matters before them.
If you have any queries relating to the above or any aspect of the criminal justice system, please do not hesitate to contact James Wairoto and Moses Ogutu. Please note that this e-alert is meant for general information only and should not be relied upon without seeking specific subject matter legal advice.
