Reprieve for KPA as court strikes out former employee’s petition
Appellate judges Gatembu Kairu, Pauline Nyamweya and Jessie Lesiit allowed KPA’s appeal challenging a decision by the High Court to dismiss preliminary objections it had raised alongside the Ethics and Anti-Corruption Commission (EACC) against Mr Abdi Mohamed Daib’s petition.
The Kenya Ports Authority got a reprieve after the Court of Appeal struck out a petition against it filed by a former employee seeking orders including payment of Sh200 million in damages for alleged violation of his rights.
Appellate judges Gatembu Kairu, Pauline Nyamweya and Jessie Lesiit allowed KPA’s appeal challenging a decision by the High Court to dismiss preliminary objections it had raised alongside the Ethics and Anti-Corruption Commission (EACC) against Mr Abdi Mohamed Daib’s petition.
The Court of Appeal ruled that the matters raised in the petition had been dealt with in another court and that the High Court erred in declining to uphold the preliminary objections.
“We allow the appeal and set aside the ruling of the High Court in its entirety. We substitute therefore an order upholding the preliminary objections and order that the petition by Abdi Mohamed Daib before the High Court be and is hereby struck out,” ruled the judges.
They said that although Mr Daib’s petition raised matters of violation of his constitutional rights, at the core was a dispute over his employee-employer relationship with KPA.
This, the judges said, was a matter falling within the constitutional and statutory jurisdiction of the Employment and Labour Relations Court, which has the mandate to address constitutional questions arising in its sphere of jurisdiction.
The Court of Appeal supported the view that courts of equal status have the jurisdiction and competence to adjudicate and settle constitutional questions in their respective areas of jurisdiction.
It also said that there was no reason the matters of constitutional violations claimed by Mr Daib in the subsequent petition before the
High Court could not have been raised before the labour court.
“We are therefore persuaded that there is merit in KPA’s complaint that the [High Court] judge erred in declining to uphold the preliminary objection on jurisdiction,” said the judges.
Mr Daib was sacked allegedly because he forged academic papers and wanted to be paid damages for violation of his constitutional rights in respect to intimidation and an unfair trial.
In its appeal, the KPA argued that the High Court had no jurisdiction to supervise or sit on appeal over the decisions of either the labour court or the Court of Appeal.
It argued that in his petition Mr Daib was seeking to have the High Court overturn the decisions of the labour court and of the Court of Appeal by urging it to declare them illegal.
The KPA also told the court that under Article 162 of the Constitution, the labour court has exclusive jurisdiction over employment matters and that issues raised by Mr Daib in the petition mirror those that were the subject of the case before the labour court.
Opposing the appeal, Mr Daib argued that the preliminary objections were properly dismissed and that the KPA and EACC were not raising pure points of law in them.
He argued that issues raised in the petition relating to violation of constitutional right and fair trial had not been litigated in the previous proceedings and that the decisions of the labour court had not been challenged in the High Court.
In the High Court, Justice Patrick Otieno had dismissed the objection by the KPA and the EACC, saying Mr Daib’s petition raised issues of continuous violation of his rights and freedoms, which were never dealt with in the labour court.
“I do find that the matter for determination in this petition cannot be treated as a purely [an] employment issue or one that deals exclusively with labour relations; rather it is a constitutional issue which this court has jurisdiction to determine,” Justice Otieno said.
In his petition, Mr Daib also wanted the court to rule that he holds valid certificates from the Kenya National Examinations Council, Kenya
Methodist University and the Kenya Institute of Studies in Criminal Justice.
He argued that as a result of his dismissal – which was based on his academic credentials though he was denied an opportunity by the
KPA and the courts to clear his name – he may never be employed.
He argued that because he lost his case in the labour court and the Court of Appeal, the KPA has withheld his savings that accrued for 20 years.
He also wanted a ruling that the High Court and the labour court had violated his constitutional rights when they referred to the evidence and information that exonerated him but ignored it in its entirety when they had an opportunity and obligation to give him justice.
