Tyson Ngetich & Kenneth Kiprotich Ngetich v Government of Bomet,Mitey Rono,County Executive Member for Finance,County Secretary Bomet,Bomet County Public Service Board,County Assembly & Controller of Budget [2017] KEHC 769 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BOMET

PETITION NO. 7 OF 2017

TYSON NGETICH........................................................1ST PETITIONER

KENNETH KIPROTICH NGETICH.........................2ND PETITIONER

=VERSUS=

THE GOVERNMENT OF BOMET...........................1ST RESPONDENT

CPA MITEY RONO....................................................2ND RESPONDENT

THE COUNTY EXECUTIVE

MEMBER FOR FINANCE........................................3RD RESPONDENT

COUNTY SECRETARY BOMET.............................4TH RESPONDENT

BOMET COUNTY PUBLIC SERVICE BOARD....5TH RESPONDENT

THE COUNTY ASSEMBLY.......................................6TH RESPONDENT

THE CONTROLLER OF BUDGET..........................7TH RESPONDENT

RULING

The Notice of Motion application dated 12th July 2017 seeks the following orders;-

1. Spent

2. That a conservatory order be and is hereby issued against the 2nd Respondent restraining him his assigns representatives, servants and or hirelings from purporting to act on the office of chief officer for finance or any other designation equivalent to the office of chief officer for finance, or any other designation equivalent to the office of chief officer for finance, making requisitions, authorizing any payments, signing cheques and or dealing with the finances of the 1st and 5th Respondents pending the hearing and determination of the application herein and the said order be enforced by the 3rd and 7th Respondent.

3. That a conservatory order be issued against the 2nd Respondent restraining him his assigns, representative servants or hirelings from purporting to act in the office of chief officer for finance, making requisitions, authorizing any payments, signing cheques and or dealing with the finances of the 1st and 5th Respondents pending the hearing and determination of the petition herein and the said order be enforced by the 3rd and 7th Respondent.

The Respondents filed a Notice of preliminary objections on thegrounds  that:-

1. That this Honourable court lacks jurisdiction to hear and determine this matter as filed and pleaded  under the doctrine of separation of powers as enshrined in articles 162  and 165 of  the Constitution, no arm of government has authority to interfere with the operations of another.

2. That under S. 12 of the Employment and Labour Relations Court Act this honourable Court has no jurisdiction to grant the relief sought by the petitioner.  On the date of hearing the preliminary objection the court was informed that the petitioner had put in written submissions. A perusal of the file does not show or reveal the presence of written submission or grounds of opposition.  In effect the preliminary objection is not opposed.

A close reading of the grounds found in the main application are thatthe 2nd Respondent was purportedly exercising the powers of a chief officer for finance yet he had not been validly appointed and or vetted to that office by the 6th Respondent.

Appointment to the office as chief finance officer in a county falls within the armbit of employment and  labour.

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

(a) Reserved for the exclusive jurisdiction of the  supreme court; or

(b) Falling with the jurisdiction of the courts contemplated in article 162(2)”.

The Article 162(2) provides for system of courts thus:- parliamentshall establish courts with the status of the High Court to hear and determine the disputes relating to;

(a) Employment and labour

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

It follows therefore that this petition falls within the armbit ofEmployment and labour and therefore this court lacks jurisdiction to entertain it.

The petition lacks merit and its dismissed.  Each party to bear its own costs.

Ruling delivered dated and signed this 11th day of October 2017 in open court and in the present of learned counsel Mr. Mugumya holding brief Matwere for 1st, 2nd, 3rd and 4th . Learned counsel for Langat for the 6th Respondent, court assistant present.

No appearance for the petitioner.

M. MUYA

JUDGE

11/10/2017

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

M. MUYA

JUDGE

11/10/2017