Hassan Willy Lesupen & 3 others v National Government Constitutuencies Development Fund Board & another; Samuel Kiprotich Burgei & 7 others (Interested Parties) [2020] KEELRC 1485 (KLR)
The bottom line
#Kenya's Employment Court ruled it can hear NG-CDF committee disputes directly, without first exhausting internal board or arbitration procedures.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st respondent is properly enjoined in the petition
- 2.Whether the petition offends the provisions of section 56(3) of the National Government Constituencies Development Act, 2015
Key legal issues
#Whether the 1st respondent was wrongly enjoined
The 1st respondent is a necessary and proper party
The petition seeks orders against the respondents jointly and severally over the application, selection, nomination and appointment of members of the Baringo South CDF Committee. The 1st respondent issued the Invitation for Applications, making it central to the dispute. The court held it cannot be extricated without removing a necessary party required for the court to effectively and completely adjudicate upon the petition.
Whether the petition offends section 56(3) of the NG-CDF Act requiring referral to the Board/arbitration in the first instance
Non-exhaustion does not oust the ELRC's jurisdiction
The court acknowledged the petitioners had not referred the dispute to the Board or arbitration, but held section 56 does not oust or restrict the ELRC's jurisdiction. The court invoked its original and unlimited jurisdiction under Articles 159(1) and 162(2)(a) read with 165(5) and (6), Articles 22(1) and 258(1) of the Constitution and the ELRC Act, 2011. It also noted the petitioners had written to the respondents raising the dispute and that the prior miscellaneous matter was no bar.
Remaining objections based on matters of fact
Those objections cannot be determined at the preliminary stage
Objections such as abuse of process, lack of legal basis for the ethnicity claim, and that the suit was overtaken by events (gazettement of 3/1/2020) depend on facts to be ascertained. Following Mukisa Biscuits, a preliminary objection must be a pure point of law; fact-based objections go to the full hearing.
Legal principles established
#- Section 56 of the National Government Constituencies Development Fund Act, 2015 does not oust or restrict the jurisdiction of the Employment and Labour Relations Court for want of exhaustion of the procedure and remedies envisaged under the section.
- A preliminary objection must raise a pure point of law which does not require ascertainment of facts or exercise of judicial discretion.
- A necessary party central to the orders sought cannot be removed from proceedings.
Court orders
#- 1.The preliminary objections by the 1st respondent are found without merit and dismissed
- 2.The court shall hear the main petition on priority basis
- 3.Costs awarded to the petitioners
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 159(1), 162(2)(a) as read with Article 165(5) and (6), Articles 22(1) and 258(1) of the Constitution, 2010 and the Employment and Labour Relations Court Act, 2011
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the objections by the 1 st respondent are found without merit. The 1 st respondent has since filed a Replying Affidavit and responded to the Petition, taking into account the time gone into, the court shall hear the main petition on priority basis. Costs herein awarded to the petitioners.
section 56 of the National Government Constituencies Development Fund Act, 2015 does not oust or restrict the jurisdiction of the Employment and Labour Relations Court for want of exhaustion of the procedure and remedies envisaged under the section.
a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
For the court to effectively and completely adjudicate upon the petition, the 1 st respondent is a necessary party herein.
Issues in the judgment
#The case number of the petition before the court is not stated anywhere in the judgment.
The judgment inconsistently describes the petitioners - the ruling opening refers to 'the petitioner' in the singular but the objections and submissions refer to plural petitioners.
Objection (e) in the list of preliminary objections is left blank/ellipsized in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan Willy Lesupen & 3 others v National Government Constitutuencies Development Fund Board & another; Samuel Kiprotich Burgei & 7 others (Interested Parties) [2020] KEELRC 1485 (KLR)", Case Analysis (2020). Not stated in the judgment (Petition filed 20th January 2020, ELRC Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1485/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.