Okoiti v National Executive of the Republic of Kenya & 14 others; Agricultural Development Corporation (ADC) (Interested Party) (Cause 60 of 2020) [2021] KEELRC 1459 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can hear disputes over state board appointments and dismissed attempts to strike out the petition on technical legal objections.
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 court has the requisite jurisdiction to hear and determine matters relating to the administrative decisions of the interested party
- 2.Whether the documents attached to the Supporting Affidavit of the petition sworn on 22nd April, 2020 were illegally obtained and should be expunged
- 3.Whether the 1st respondent is capable of suing and being sued
Key legal issues
#Jurisdiction over administrative decisions of the interested party's board
The court has jurisdiction because the substratum of the petition is appointments, abuse of office and employment-related matters within Article 162(2)(a) and section 12 of the ELRC Act
The court traced its jurisdiction to Article 162(2)(a) and section 12 of the Employment and Labour Relations Court Act, adopting the golden test in Mugendi that jurisdiction depends on the subject matter, not remedies or procedure. Since the petition concerns appointment of board members, abuse of office and victimisation of staff arising from the employment relationship, removing it from the court would abdicate its constitutional mandate.
Admissibility of allegedly illegally obtained documents
The objection fails because it raises factual matters unsuitable for a preliminary objection; the documents can be tested at the hearing
Relying on Mukisa Biscuit, the court held that preliminary objections must be pure points of law. The challenge to the supporting affidavit and its documents concerns matters of fact, which parties can counter through supplementary or further affidavits, and can well be gone into during the hearing of the petition. The objection on admissibility was therefore premature.
Capacity of the National Executive of the Republic of Kenya to be sued
There is no constitutional entity known as the National Executive of the Republic of Kenya capable of suing or being sued; it is a non-suited party
The court found that while Article 130(1) establishes the National Executive comprising the President, Deputy President and Cabinet, no legal entity is ascribed under Article 130 capable of suit. However, under Rule 5 of the Mutunga Rules, misjoinder is not fatal and the petitioner may amend the petition.
Legal principles established
#- Preliminary objections must raise pure points of law and cannot be raised where facts have to be ascertained
- The ELRC's jurisdiction is defined by the subject matter of employment and labour relations, not the remedies sought or the procedure used
- Misjoinder of a party in a petition is not fatal
Court orders
#- 1.The preliminary objections by the 5th to 15th respondents are found without merit and dismissed
- 2.Costs shall abide the petition
- 3.The petitioner is at liberty to amend the petition in accordance with the applicable Rules in respect of the misjoinder of the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, 2011
Relief refused
#Striking out of aspects of the petitioner's claim with costs as sought by the 15th respondent
Objections found without merit; challenge to documents was a matter of fact not fit for preliminary objection
Expunging of documents attached to the petitioner's Supporting Affidavit
A challenge to facts and documents cannot be determined on a preliminary objection
Costs
Costs shall abide the petition
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 made are hereby found without merit and are dismissed. costs shall abide the petition.
It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
The court holds that the compass or golden test for the court’s jurisdiction is the subject matter in the dispute
Such entity does not exist in law and cannot sue or be sued.
Issues in the judgment
#The 15th respondent is also referred to as the 16th respondent in the determination section
Inconsistent citation of the Omtatah case as [2020] and [2014] and as 'another' versus '3 others'
The judgment contains multiple typographical errors (e.g. 'oficers', 'afi davits', 'fiow', 'cots')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoiti v National Executive of the Republic of Kenya & 14 others; Agricultural Development Corporation (ADC) (Interested Party) (Cause 60 of 2020) [2021] KEELRC 1459 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1459/eng@2021-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.