Nyasimi & another v Eng. (CPA) Antony Wamukota; Kenya Electricity Transmission Company Limited (Interested Party) (Petition E193 of 2023) [2024] KEELRC 2537 (KLR)
The bottom line
#Kenya's Employment Court threw down a union's petition over a KETRACO official's conduct, ruling the real dispute was procurement already decided by the High Court.
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 ELRC has jurisdiction over a dispute whose overriding subject matter is procurement and tendering
- 2.Whether the petition is res judicata and an abuse of court process in light of the High Court judgment in Judicial Review Misc. E100 of 2022
- 3.Whether the Bill of Rights extends to a limited liability company (2nd petitioner)
- 4.Whether the petition discloses a cause of action for violation of rights with particularity
- 5.Whether the petitioners were required to first invoke the Public Officer Ethics Act, 2003 disciplinary regime
Key legal issues
#Jurisdiction of the ELRC over the petition
Although the court has subject matter jurisdiction over public officers and their employers under section 12(2) of the ELRC Act, the overriding dispute was procurement and tendering already determined by the High Court, so the petition is outside the court's proper dispute.
The court acknowledged that the respondent is a public officer employed by the interested party, engaging section 12(2) of the ELRC Act. However, it found that the predominant dispute was the tendering and procurement process determined in the High Court judicial review proceedings. Strategic or public interest litigation is permissible only where the subject matter is employment or work-related. The petition sought to revisit the procurement findings and was therefore misconceived in this forum.
Res judicata and abuse of process
The petition is res judicata and an abuse of court process because the matters raised were decided or ought to have been decided in the High Court judicial review proceedings.
A suit can be founded on a judgment, but enforcement of a holding lies with the court that made the judgment under the Civil Procedure Act. The petitioners failed to make specific prayers against the respondent in the earlier suit and now sought to fill that gap without explaining why the matters could not have been raised with due diligence in the earlier proceedings.
Whether the Bill of Rights extends to companies
The Bill of Rights applies to all persons including companies, within the definition of 'person' in Article 260 of the Constitution; the objection based on Article 19(3)(a) cannot hold.
The respondent and interested party argued that constitutional protections belong only to natural persons and not limited liability companies such as the 2nd petitioner. The court rejected this, holding that the provisions of the Bill of Rights refer to 'person' and that the definition in Article 260 encompasses companies. This ground of the preliminary objection therefore failed.
Failure to disclose a cause of action and to exhaust the Public Officer Ethics Act regime
The petition does not plead how the respondent violated the petitioners' rights, and the petitioners did not invoke the disciplinary procedure under the Public Officer Ethics Act, 2003 before filing suit.
Although constitutional provisions were enumerated, the petition nowhere stated how the respondent violated the petitioners' rights, so no cause of action was disclosed. Further, the Public Officer Ethics Act, 2003 sets out a disciplinary regime for persons alleging breach of the code of conduct, and there was no suggestion the petitioners invoked that procedure or that such efforts failed.
Validity of the preliminary objection
The preliminary objection succeeds to the extent of the court's findings, meeting the parameters of a proper preliminary objection as no evidence was needed.
The court found that the grounds upheld - jurisdiction, res judicata, failure to exhaust statutory remedies and failure to disclose a cause of action - were pure points of law determinable without evidence, satisfying the parameters of a proper preliminary objection. The objection was upheld only to that extent, and the petition was dismissed with each party bearing own costs.
Legal principles established
#- A petition that predominantly revisits a procurement dispute already determined by the High Court is res judicata and an abuse of court process
- Satisfaction of a holding of a court lies with the court that made the judgment under the Civil Procedure Act
- The Bill of Rights applies to all persons including companies within the meaning of Article 260 of the Constitution
- A party alleging breach of the public officer code of conduct must first invoke the regime under the Public Officer Ethics Act, 2003
Court orders
#- 1.The preliminary objection is upheld to the extent as found in the ruling
- 2.The petition is dismissed
- 3.Each party to bear own costs of the proceedings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011, section 12(2) - jurisdiction contested under Article 162(2)(a) and 165(5)(b) of the Constitution
Relief refused
#Declaration that the respondent is unfit to hold public office and unfit to hold the office of General Manager, Design & Construction of KETRACO
Petition dismissed for lack of jurisdiction, res judicata and failure to disclose a cause of action
Order of mandamus compelling the interested party to conduct a fresh recruitment
Petition dismissed; enforcement of the High Court holding lies with the court that made the judgment
Damages against the respondent
No cause of action for rights violation disclosed
Costs
Each party to bear own costs of the proceedings
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.
the instant petition is res judicata and an abuse of court process as the matter was decided or ought to have been decided by the High Court in the Judicial Review proceedings subject of the prayers herein
the predominant dispute was tendering and procurement as already determined in the mentioned judgment of the High Court
satisfaction of the holding lies to the jurisdiction of the Court that made the judgment
the Bill of Rights apply to all persons including companies and within definition of “person” in Article 260 of the Constitution
the preliminary objection is upheld to the extent as found herein and the petition is hereby dismissed with orders each party to bear own costs of the proceedings
Issues in the judgment
#The names of the petitioners are not stated in the body of the judgment as provided; the 2nd petitioner is referred to only as a limited liability company
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyasimi & another v Eng. (CPA) Antony Wamukota; Kenya Electricity Transmission Company Limited (Interested Party) (Petition E193 of 2023) [2024] KEELRC 2537 (KLR)", Case Analysis (2024). Petition dated 09.10.2023 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2537/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.