Bomet County Assembly Service Board v County Executive Member for Finance, Governer Bomet County & Controller of Budget [2017] KEHC 791 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BOMET

PETITION NO. 8 OF 2017

BOMET COUNTY ASSEMBLY SERVICE BOARD....................PETITIONER

=VERSUS=

THE COUNTY EXECUTIVE

MEMBER FOR FINANCE…………………….....………1ST  RESPONDENT

THE GOVERNER BOMET COUNTY …………….……2ND  RESPONDENT

- AND -

THE CONTROLLER OF BUDGET…………................INTERESTED PARTY

RULING

The Notice of Motion application dated 14th Day of July  2017 seeks the following orders;-

1. Spent

2. That an order do issue against the Respondents that, pending the hearing and determination of the application interpartes, the Respondents  release to the county assembly all moneys meant for operations of the county assembly including for payment of salaries meant for members and staff of the county assembly of Bomet.

3. That an order be issued against the Respondents that, pending the hearing and determination of the petition herein, the Respondents releases to the county assembly all moneys meant for operations of the county assemble including for the payment of salaries meant for members of staff of the county assembly of Bomet.

4. That pending the hearing and determination of this petition this honourable court be pleased to issue a conservatory order restraining the respondents from utilizing the county assembly’s unspent recurrent funds for 2016/2017 financial year.

The grounds being that:-

1. That first respondent is abusing his position as county executive member of finance to unlawfully and unfairly deny the members and staff of Bomet county their salaries.

2. That the Respondents are misusing public office.

3. That the employees of the County Assembly through their unions have issued a strike threat notice.

Once again as in petition No. 7 of 2017 the dispute is between an employer and employees on nonpayment  of salaries.  This petition also falls squarely on matters employment and labour.

Article 165(5) of the Constitution provides:- the High Court shall not have jurisdiction on respect of matters:-

(a) Reserved for the exclusive Jurisdiction of the Supreme court under this Constitution; or

(b) Falling within the jurisdiction of the courts contemplated on article 162(2).

Article 162(2) of the Constitution provides:- Parliament shall establish courts with the status of the High court to hear and determine disputes relating to:-

(a) Employment and labour relations; and

(b) The environment and the use and occupation of, and title to land

Having found that this petition falls on matters employment and labour it is my considered view that same ought to have been filed before the Employment and Labour Court which it has the necessary jurisdiction.

This court lacks jurisdiction and the petition is dismissed. Each party to bear its own costs.

Ruling delivered dated and signed in open court this 11th day of October 2017 before learned counsel for Mr. Mugumya holding brief Matwere for 1st and 2nd Respondents, learned counsel for 3rd Respondent present

Petitioner Mr. Langat , court assistant Rotich.

M. MUYA

JUDGE

11/10/2017

Certified copies of the ruling to be supplied to the counsels.

M. MUYA

JUDGE

11/10/2017