Juma & 4 others (on their Behalf and on Behalf of 285 Others Casual Labourers at the National Police Service) v National Police Service Commission & 6 others (Constitutional Petition E148 of 2023) [2024] KEELRC 2800 (KLR)
The bottom line
#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 Petition is barred because the Employment Act, 2007 does not apply to members of the police service by virtue of section 3(2)(b) of the Employment Act
- 2.Whether the Petition is fatally defective for breach of Rules 23(2) and 23(3) of the Employment and Labour Relations Court Procedure Rules, 2024 regarding authority letters and a schedule of claimants
Key legal issues
#Whether the exclusion of police service employees from the Employment Act ousts the ELRC's jurisdiction over a constitutional petition
It does not. The petition is grounded on the Constitution, and labour rights are part of the Bill of Rights which this court may interpret and enforce.
The court noted that the claim is a constitutional petition anchored on constitutional provisions rather than the Employment Act. Relying on the USIU decision, it held that labour rights are human rights protected under Article 41 and fall within the province of the Industrial Court (ELRC). The exclusion in section 3(2) of the Employment Act does not remove the court's constitutional jurisdiction.
Whether the alleged non-compliance with Rules 23(2) and 23(3) of the ELRC Procedure Rules, 2024 could ground a preliminary objection
It could not, because determining whether authority letters or a schedule of claimants were filed requires an inquiry into facts and evidence, which is outside the purview of a preliminary objection.
Following the Mukisha Biscuits position on the nature of preliminary objections, the court held that a preliminary objection must raise a pure point of law on assumed facts. Whether pleadings and affidavits were actually filed is a factual question requiring analysis, and therefore the second and third grounds of the objection were misconceived and were dismissed.
Legal principles established
#- Labour rights are human rights and fall within the interpretive jurisdiction of the Employment and Labour Relations Court notwithstanding that the Employment Act may not apply to a category of employees, where the claim is grounded on the Constitution.
- A preliminary objection must raise a pure point of law and cannot involve analysis of facts or evidence.
Court orders
#- 1.The preliminary objection dated 8th October 2024 is found to have no merit and is dismissed
- 2.Costs to the petitioner
- 3.Judgment/ruling delivered virtually in Nairobi on 14th November 2024
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 41 of the Constitution of Kenya 2010; Article 22 and 258 (enforcement of Bill of Rights); jurisdiction of the Employment and Labour Relations Court under section 12 of the Industrial 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.
Having stated as above, I find the preliminary objection raised has no merit. I dismiss it accordingly. Costs to the petitioner.
Indeed it has already been decided by the High Court (USIU case) cited herein that labour rights are human rights and are therefore subject to interpretation by this court.
This court is being invited at this time to come and analyze whether the alleged pleadings have been filed or not which in my view goes outside the purview of a preliminary objection as held in the Mukisha Biscuits case.
Issues in the judgment
#The judgment is a ruling on a preliminary objection but the parties and record refer to it as a petition/judgment; the heading to the disposition reads 'DATED, SIGNED AND DELIVERED' without stating 'RULING'. Also the case number and full party names do not appear in the excerpt.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma & 4 others (on their Behalf and on Behalf of 285 Others Casual Labourers at the National Police Service) v National Police Service Commission & 6 others (Constitutional Petition E148 of 2023) [2024] KEELRC 2800 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2800/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.