Paul Chirchir v Haron Rotich & 9 others [2021] KEELRC 75 (KLR)
The bottom line
#Kenya's Employment Court ruled it cannot hear an MCA's challenge to his removal as a committee chairperson because elected ward representatives have no employment relationship with the county assembly.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction over a dispute involving removal of an MCA from a select committee chairpersonship
The court lacks jurisdiction; there is no contract of service or labour relationship between the petitioner and the committee members
Article 162(2)(a) and section 12 of the ELRC Act confine the court's jurisdiction to employer-employee and labour relations disputes. An employment relationship is founded on a contract of service. An elected ward representative has no contract of service with the County Assembly, and his election and removal as committee chairperson by fellow members under Standing Order 188(1) creates no employment relationship. The dispute is therefore outside the court's specialized jurisdiction.
Whether internal County Assembly committee proceedings are justiciable
They are not justiciable absent breach of the Constitution or another law; internal procedures should be exhausted
Select committees are creatures of the Standing Orders, and disputes among committee members have a political character. The court should not interfere with internal procedures unless there is breach of the Constitution or another law, as doing so would pierce the veil of separation of powers. The court relied on the Supreme Court's Advisory Opinion No. 3 of 2013 on non-interference with parliamentary internal workings.
Whether a suit filed in a court without jurisdiction can be transferred to another court
No - such a suit is incompetent ab initio and not transferable; but here the suit was first filed in the High Court, so it is returned there
Following West Kenya Sugar and Phoenix of EA Assurance, a suit instituted before a court devoid of jurisdiction is a nullity ab initio and cannot acquire life by transfer. However, since this petition was first filed in the High Court, which the respondents consider the proper forum, the court held it was not incompetent and returned it to the High Court at Kericho for directions.
Legal principles established
#- For the ELRC to exercise jurisdiction, an employer-employee or labour relationship must be shown
- A suit filed in a court without jurisdiction is incompetent ab initio and cannot be transferred to another court
- The ELRC enjoys equal status with the High Court and can transfer suits to other courts notwithstanding sections 17 and 18 of the Civil Procedure Act
Court orders
#- 1.The court declined jurisdiction over the petition
- 2.The Petition is returned to the High Court at Kericho for directions
- 3.No order as to costs - 'I will not condemn anyone to pay costs'
- 4.Any aggrieved party is at liberty to appeal against this ruling
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Chirchir v Haron Rotich & 9 others [2021] KEELRC 75 (KLR)", Case Analysis (2021). ELRC Petition (Kericho), transferred from the High Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/75/eng@2021-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.