REPUBLIC V NATIONAL CEREALS & PRODUCE BOARD EXPARTE NAIBEI GERISHON KISACHI [2012] KEHC 782 (KLR)

REPUBLIC OF KENYA

High Court at Eldoret

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REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

NATIONAL CEREALS & PRODUCE BOARD:::::::::::::::::::::RESPONDENT

EXPARTE NAIBEI GERISHON KISACHI::::::::::::::::::::::::::::RESPONDENT

RULING

The Ex-parte applicant, Naibei Gerishom Kisachi, has by his chamber summons, sought leave of this court to apply for orders of certiorariandmandamus.   The former is to remove into this court and quash the decision of National Cereals and Produce Board (the 1st respondent) dismissing the applicant from its service as a clerk.   The latter is to compel the respondent to reinstate him to his employment and make full payment of his accrued salary from June, 2007 until reinstatement. The grounds for the application are that the said decision is contrary to the rules of natural justice that the respondent acted in an ultravives manner and that the respondent acted with malice.

The chamber summons is accompanied by an affidavit and a statement of facts.   The affidavit gives the background facts leading to the applicant's dismissal which he says was unlawful as it offended the rules of natural justice; was motivated by bad faith and that the respondent acted in an ultra-vires manner.

When the applicant appeared ex-parte before Mshila J, on 9th February, 2012, the learned judge directed that the application be served. When served, the respondent filed a Notice of Preliminary Objection, contending mainly that this court has no jurisdiction to entertain the application as the dispute falls under Article 162(2)(a) of the Constitution and Section 4 of the Industrial Court Act. The respondent also filed a replying affidavit through its legal officer G.R. Omenke.   In the affidavit, the respondent denied the averments in the supporting affidavit and contended that the applicant was dismissed after a judicious and just process. It also reiterated that the dispute falls under the purview of the Industrial Court by virtue of Article 162(2)(a) of the ConstitutionandSection 4of theIndustrial Court Act No. 20 of 2011.

The pleadings were in that state when the application came up before me for hearing on 31st July, 2011. Counsel agreed to file written submissions which were duly in place by 9th October, 2012. The submissions elaborated the stand-points of the parties in their respective affidavits.

I have considered the application, the affidavits filed, the submissions of counsel and the authorities cited. Having done so, I take the following view of this matter. From the outset, it would appear that the applicant has urged the granting of the substantive orders of certiorariandmandanus rather than seeking leave to apply for those orders. For avoidance of doubt this application is for leave to apply for the said judicial review orders.

The jurisdiction of this court has been challenged. I should therefore decide the issue right away since jurisdiction is everything without which, I should not make one more step (See Owners of Motor Vessel“Lillions”-Vs- Caltex Oil (Kenya) Limited (1959(KLR1)The starting point is the Constitution. Articles 162 and 165 are in the following terms:-

“162 (1) The superior courts are Supreme Court, the Court    of Appeal, the High Court and thecourts mentioned in  clause (2).

(2) Parliament shall establish courts with the status of the High Court to hear and determine disputesrelating to:-

(a) employment and labour relations; and

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

(3) Parliament shall determine the jurisdiction andfunctions of the court contemplated in clause (2).

…................................

165 (5) The High Court shall not have jurisdiction in 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 in Article 162 (2)”

A plain reading of Article 162(5) (b),shows that disputes relating to employment and labour relations are expressly excluded from the jurisdiction of the High Court. Those disputes can only be heard and be determined by courts established by parliament under the provisions of Article 162(2) of the Constitution.

Parliament then enacted the Industrial Court Act No. 20 of 2011. The said Act, in Section 12, provides as follows:-

“12(1) The court shall have exclusive original andappellate jurisdiction to hear and determine all disputesreferred to it in accordance with Article 162(2) of theConstitution and the provisions of this Act or any otherwritten law which extends jurisdiction to the court relatingto employment and labour relations including -

(a) disputes relating to or arising out of employment between an employer and an employee;

(b) disputes between an employer and a trade union;

(c) disputes between an employer's organisation and a trade union organisation;

(d) disputes between trade unions

(e) disputes between employer organisations;

(f) disputes between employers' organisation and a trade union;

(g) disputes between a trade union and a member thereof.

(h) disputes between an employer's organisation ora federation and a member thereof.

(i) disputes concerning the registrar and election of trade union officials; and

(j) disputes relating to the registration and enforcement of collective agreements.”

So, by virtue of the provisions of Section 12(1) (a) of the said Act, the Industrial Court has exclusive jurisdiction to hear and determine all disputes relating to or arising out of employment between an employer and an employee.

There is no dispute that the relationship between the applicant and the respondent was that of an employee and employer respectively. Indeed it is the dismissal of the applicant by the respondent that has precipitated the dispute.   There can therefore be no gainsaying that the dispute between the applicant and the respondent relates to or arises out of the employment between the respondent and the applicant.

The Industrial Court has been constituted and is now fully operational. That being the case, the High Court lacks jurisdiction to hear and determine the dispute between the applicant and the respondent. I am not alone in this conclusion.   Majanja J in United States International University -Vs- The Attorney General and 2 others (2012) e KLR held as follows in a dispute over alleged breach of fundamental rights and freedoms:-

“The High Court lacks jurisdiction to deal with mattersof employment and labour matters whether filed in theHigh Court before or after the establishment of the Industrial Court.”

Having come to the conclusion that I have no jurisdiction to entertain the ex-parte applicant's application, I must down tools and take no further step in this matter. I do not therefore have to consider other arguments and authorities relied upon by the applicant as those arguments and authorities would support a substantive motion if it is to be filed.

In the premises, leave is declined.

I make no order as to costs.

It is so ordered

DATED AND DELIVERED AT ELDORET

THIS 6TH DAY OF NOVEMBER, 2012

F. AZANGALALA

JUDGE

Read in the presence of:-

Mr. Nyamweya for the Applicant and

Mr. Nyolei H/B for Nyaundi for the Respondent.

F.AZANGALALA

JUDGE

6TH NOVEMBER, 2012