Republic v Secretary Teachers Service Commission & another; Odembo (Exparte) [2022] KEHC 14241 (KLR)

Republic v Secretary Teachers Service Commission & another; Odembo (Exparte) (Miscellaneous Civil Application E006 of 2022) [2022] KEHC 14241 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14241 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Civil Application E006 of 2022

RE Aburili, J

October 19, 2022

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR AN ORDER OF CERTIORARI

Between

Republic

Applicant

and

Secretary Teachers Service Commission

1st Respondent

Attorney General

2nd Respondent

and

Francis Namugerwa Odembo

Exparte

Ruling

1. The notice of motion dated April 13, 2021 seeks leave of this court to institute judicial review proceedings challenging the procedure adopted by Teachers Service Commission (TSC) the 1st Respondent herein in dismissing the ex parte applicant who was its employee, from the teaching service.

2. The 1st respondent filed a preliminary objection dated May 3, 2022 objecting to the jurisdiction of this court to hear and determine the matter and Mr. Osala counsel for theex parte applicant, upon perusal of the various sections/articles of the Employment and Labour Relations Court Act and the Constitution concedes that this matter ought to have been initiated before the ELRC.

3. Article 162(2) (a) of the Constitutioncontemplates the establishment of the Employment and Labour Relations Court which is a court of equal status with the High Court to hear and determine disputes relating to Employment and Labour Relations. The disputes include but not limited to those set out in theELRCActand more particularly section 12 of the Act. In addition, the Employment and Labour Relations Court Act at section 12(7) has power to make orders including Judicial Review Orders as the ones sought herein.

4. Under article 165(5) (b) of the Constitution, the High Court is prohibited from entertaining disputes which are expressly reserved for the courts contemplated in article 162(2) of the Constitution and the Supreme Court.

5. Jurisdiction is everything without which a court of law acts in vain and therefore once a court finds that it has no jurisdiction to entertain a matter before it, it must down its tools and do no more.

6. Jurisdiction cannot be vested by the parties, not even by fiat of the court. Jurisdiction is given by statutes and the Constitution. In the instance case, the Constitutionat articles 162(2) and 165(5) (b) limits the jurisdiction of this Court and bars it from hearing and determining disputes which are reserved for the courts of equal status. This dispute being between employee and employer, strictly speaking, falls within the jurisdiction of the Employment and Labour Relations Court. It is not a shared or eclectic.

7. For that reason above, I find that this court is devoid of jurisdiction to hear and determine the intended substantive notice of motion and therefore the application for leave to apply is a non starter.

8. It is hereby struck out with no orders as to costs and this file is accordingly closed.

9. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 19TH DAY OF OCTOBER 2022R. E. ABURILIJUDGE